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62d Congress \ SENATE -I Document 

2d Session j ' " \ No. 787 



THE REAL 

AUTHORSHIP OF 

THE CONSTITUTION OF 

THE UNITED STATES 

EXPLAINED 

v 

JAMES MADISON AND PELATIAH WEBSTER DEFENDED BY 
HANNIS TAYLOR AGAINST ATTACKS CONTAINED 
IN SENATE DOCUMENT NO. 402, SIXTY- 
SECOND CONGRESS, SECOND 
SESSION, ENTITLED : 

"PELATIAH WEBSTER AND THE CONSTITUTION, 
an article prepared by Gaillard Hunt and published in the Nation of 
December 28, 1911." 

" History is studied from documents. Documents are the traces which have been left 
by the thoughts and actions of men of former times. There is no substitute for docu- 
ments: no documents, no history."— Ch.-V. Langlois. 



PRESENTED BY MR. SMITH OF GEORGIA 
JUNE 5, 1912. — Ordered to be printed 



WASHINGTON 
1912 



/x 



62d Congrkss 
2d Session 



Document 
No. 787 



THE REAL 

AUTHORSHIP OF 

THE CONSTITUTION OF 

THE UNITED STATES 

EXPLAINED 






fcl* 



JAMES MADISON AND PELATIAH WEBSTER DEFENDED BY 
HANNIS TAYLOR AGAINST ATTACKS CONTAINED 
IN SENATE DOCUMENT NO. 402, SIXTY- 
SECOND CONGRESS, SECOND 
SESSION, ENTITLED : 

"PELATIAH WEBSTER AND THE CONSTITUTION, 
an article prepared by Gaillard Hunt and published in the Nation of 
December 28, 1911." 



"History is studied from documents. Documents are the traces which have been left 
by the thoughts and actions of men of former times. There is no substitute for docu- 
ments: no documents, no history."— Ch.-V. Longlois. 



<& 



PRESENTED BY MR. SMITH OF GEORGIA 
JUNE 5, 1912.— Ordered to be printed 



WASHINGTON 
1912 



THE REAL AUTHORSHIP OF THE CONSTITUTION OF 
THE UNITED STATES EXPLAINED." 

JAMES MADISON AND PELATIAH WEBSTER, DEFENDED BY HANNIS TAYLOR AGAINST 
ATTACKS CONTAINED IN SENATE DOCUMENT NO. 402, SIXTY -SECOND CONGRESS, 
SECOND SESSION, ENTITLED: "PELATIAH WEBSTER AND THE CONSTITUTION, AN 
ARTICLE PREPARED BY GAILLARD HUNT AND PUBLISHED IN THE NATION OF 
DECEMBER 28, 1911," 



THE article in question, which appeared in the Nation of 
December 28, 191 1, was republished in full in the Evening 
Post, of New York, on the 30th of the same month. As the pri- 
mary purpose of that article was to undermine and discredit a 
notable statement as to the work of Pelatiah Webster, made by- 
Madison and published in his famous " Papers" by Gilpin in 1841, 
its author was tempted, in the execution of his design, to make 
two gravely indefensible statements. The first was embodied in 
the assertion that Madison's testimony in favor of Webster was 
not intended or prepared for posthumous publication, a fact Mr. 
Hunt could not possibly have known ; the second was embodied in 
the pointed insinuation that, in any event, such testimony is not 
entitled to credence because given by Madison "in extreme old 
age," when he was really a dotard. As these assaults upon the 
fame of Madison and Webster were contained in an article largely 
devoted to criticisms of what the undersigned had written upon 
the same subject, he deemed it his duty to defend both. He 
therefore sent to the Evening Post, on January 5, 1912, the 

1 The full text of Pelatiah Webster's epoch-making document of February 16, 1783, is contained in 
the Appendix. 



4 Authorship of the Constitution of the United States. 

following reply to Mr. Hunt's article published as Senate Docu- 
ment No. 402 : 

To the Editor of the Evening Post. 

Sir: In your issue of December 30, Mr. Gaillard Hunt, who 
writes pleasantly on popular history, has made an ungenerous 
attack upon Madison in order to injure the fame of Pelatiah Web- 
ster. He begins by warming over an old story originated by 
Bancroft, who denied the truth of the following statement made 
by Madison in his famous Papers published by Gilpin in 1841: 
"In a pamphlet published in May, 1781, at the seat of Congress, 
Pelatiah Webster, an able though not conspicuous citizen, after 
discussing the fiscal system of the United States and suggesting, 
among other remedial provisions one including a national bank, 
remarks that ' the authority of Congress at present is very inade- 
quate to perform their duties; and this indicates the necessity of 
their calling a Continental Convention for the express purpose of 
ascertaining, defining, enlarging, and limiting the duties and 
powers of their Constitution.' " 

Mr. Hunt tells us that " Madison's sketch, in which the error of 
attributing the pamphlet to Webster occurred, was written by him 
in extreme old age and was not one of the papers which he pre- 
pared for posthumous publication." The imputation of dotage 
thus made against Madison is, however, really less vicious than 
another recent assault made by Mr. Hunt on that peerless patriot 
in a book entitled the Life of James Madison, in which, in speak- 
ing of the "Virginia Plan," he says: "It contains the features of 
Madison's ideas of government as outlined in his letters to Ran- 
dolph and Washington, but it was Randolph's hand that actually 
drew up the resolutions known in the convention as 'the Virginia 
plan.' " The only authority given in support of that indefensible 
assertion is Rowland's Life of George Mason, ii, 101, where we 
find a letter written by George Mason from Philadelphia, May 20, 
1787, to George Mason, jr., saying that "the Virginia deputies 
(who are all here) meet and confer together two or three hours 
every day in order to form a proper correspondence of sentiments, 
and for form's sake to see what new deputies are arrived and to 
grow into some acquaintance with each other we regularly meet 



Authorship of the Constitution of the United States. 5 

every day at 3 o'clock." Not the slightest reference is made in 
Mr. Hunt's only authority to Randolph or to any part taken by 
him in the drafting of the Virginia plan. Nothing can be found 
anywhere to give color to such a statement. We know that for 
nearly a year Madison had been specially engaged upon that 
work. (See Preparation of Madison for labors of Federal con- 
vention in Rives, Life and Times of James Madison, ii, 208.) 

The internal evidence is all in Madison's favor; the style is 
manifestly his. It is the deliberate and finished product of a 
careful hand that has spared no pains. There is no evidence 
whatever of any such preliminary labor upon the part of Ran- 
dolph. There is positive evidence to the contrary in Madison's 
letter to Randolph of April 8, 1787, in which he says: "My despair 
of your finding the necessary leisure as signified in one of your let- 
ters, as to the probability that some leading propositions at least 
would be expected from Virginia had engaged me in a closer atten- 
tion to the subject than I would otherwise have given." Ran- 
dolph really disclaimed authorship of the resolutions when, in the 
opening words of his speech, "He expressed his regret that it 
should fall to him, rather than those who were of longer standing 
in life and political experience, to open the great subject of their 
mission. But as the convention had originated from Virginia, 
and his colleagues supposed that some proposition was expected from 
them, they had imposed that task on him.' 1 There is no intimation 
that the task of drafting the resolutions had in any way been imposed 
on him; as governor of Virginia he was simply made the spokes- 
man of the delegation. And here the very important fact should 
be noted that Randolph's speech is inserted entirely in Randolph's 
hand, while the Virginia plan is spread upon the journal in Madi- 
son's hand. There can be no doubt that Madison was the drafts- 
man of the Virginia plan. It was undoubtedly his production 
both as to form and substance, and has always been so considered. 
And yet without the slightest evidence to support his attribution 
to Randolph, Mr. Hunt has made a flippant attempt to deprive 
Madison of the honor, just as he has attempted to deprive Pela- 
tiah Webster of Madison's testimony by the intimation that when 
he gave it he was a dotard. 

4803 1 ° — S. Doc. 787, 62-2 2 



6 Authorship of the Constitution of the United States. 

And yet as an historical critic Mr. Hunt is really a more reliable 
witness than Bancroft, whose well known assault upon Madison 
he has attempted to revive. For a quarter of a century Bancroft 
misled students of the Constitution by making them believe that, 
next in importance to the Virginia plan, was his pipe dream 
called the "Connecticut plan," prepared, he says, at Philadelphia 
by Roger Sherman before the 19th of June, and supported by the 
entire Connecticut delegation. I have demonstrated from the 
records long ago that the so-called " Connecticut plan " had no 
existence outside of Bancroft's imagination; that no such plan 
was ever offered by Roger Sherman in the convention, or sup- 
ported therein by the delegates from Connecticut. The paper 
that misled Bancroft was one drawn many years 'before by Roger 
Sherman while he was a member of the Continental Congress, as 
amendments then to be proposed to the Articles of Confedera- 
tion. But he never offered the paper anywhere; it was simply 
an unused memorandum found among Sherman's papers after his 
death by his executors. [See "A Bancroftian invention," Yale 
Law Journal, Dec, 1908.] I put these facts in evidence in order 
to show the character of the witnesses who undertake to say that 
Madison spoke falsely when he made the statement as to Pelatiah 
Webster's authorship of the paper published in the summer of 
1 781 , proposing the calling for the first time of " a Continental Con- 
vention for the express purpose of ascertaining, denning, enlarging, 
and limiting the duties and powers of their Constitution." 

But what I really object to is Mr. Hunt's disingenuous attempt 
to make it appear that I have attached vital importance to the 
announcement which Madison says Pelatiah Webster made in the 
summer of 1781 as to the calling of a "Continental Convention." 
In my recent work I said: " No attention should be paid to Ban- 
croft's vain attempt to discredit Madison's statement. (History 
of the Constitution, 1, 25, note 3.) Apart from Madison's great 
accuracy and Bancroft's well-known inaccuracy stands the fact 
that the call of 1781 was a natural part of Pelatiah Webster's 
initiative as now understood. Madison was on the ground and 
knew the facts; Bancroft's inference is based on flimsy hearsay 
nearly a century after the event. Bancroft never grasped the 
importance of Webster's work." In commenting on that state- 



Authorship of the Constitution of the United States. 7 

ment Mr. Hunt has said: "Here he welds the pamphlets of 1781 
and 1 783 together more strongly than ever before, so that when one 
falls the other must have a precarious standing." That is one of 
Mr. Hunt's many bungling inventions. He attempts to make it 
appear, without any basis of fact whatever, that I have made the 
pamphlet of 1783, as to whose authenticity there is no possible 
question, hang upon a few comparatively unimportant lines in the 
pamphlet of 1 78 1 . The plain answer is I have done nothing of the 
kind. There was no motive for such a contention on my part. 
The epoch-making paper of 1783 is just as important, just as 
authentic, even if it should be proven that the comparatively un- 
important paper of 1781 never existed. 

When we pass to Mr. Hunt's attempt to analyze the epoch- 
making paper of February 16, 1783, in which Pelatiah Webster 
announced to the world, as his invention, "the great discovery is 
modern political science," now embodied in our existing Constitu- 
tion, it is hard not to wonder why one who writes pleasantly on 
popular history should enter the more difficult field of constitu- 
tional law without the necessary equipment as jurist or publicist. 
The critic of our complex Constitution who does not understand 
that the history of the single States that compose the substructure, 
is one thing, and that the history of the two Federal constitutions 
that have held them together is quite another thing, is lost. 
The moment such a critic jumbles the two distinct histories 
together, as Mr. Hunt does, clear thinking is impossible. The 
starting point is the fact that no federal government that ever 
existed prior to February 16, 1783, had ever possessed the power 
to levy a penny of taxes. For that reason all such federal govern- 
ments had been failures. The framers of the Articles of Confedera- 
tion perfectly understood that fact, as we know from John Adams, 
who tells us in his inaugural address that " the Confederation which 
was early felt to be necessary was prepared from the models of the 
Batavian and Helvetic Confederacies, the only examples which 
remain with any detail and precision in history and certainly 
the only ones which the people at large had ever considered. 
But reflecting on the striking difference in so many particulars be- 
tween this country and most where a courier may go from the seat 
of government to the frontier in a single day, it was certainly fore- 



8 Authorship of the Constitution of the United States. 

seen by some who assisted in the Congress at the formation of it that it 
could not be durable." 

Dr. Franklin, who made the first draft of the Articles of Con- 
federation (it survives in his handwriting), had just as good an 
opportunity to create a new Federal system as Pelatiah Webster. 
But, genius as he was, he was perfectly sterile, because the ques- 
tion to be solved was one of finance, and he was not a financier. 
Webster was; and in that way he conceived of a new Federal 
creation armed, for the first time in the world's history, with the 
power to tax. No schoolboy should be guilty of this statement 
which Mr. Hunt makes: " It contains only two features which also 
appear in the Constitution — the power of Federal taxation and 
the bicameral legislature — and there were no two principles of 
government better understood in the States at the time Webster 
wrote than these." Nothing could be more absurd. People in 
the States understood how single States, like England and Virginia, 
had the power to tax ; how single States could have a bicameral 
legislature; but no one had dreamed of a Federal State with the 
independent power of taxation ; no one had dreamed of a Federal 
legislature divided into two chambers ; no one had dreamed of a 
Federal State divided into three departments — executive, legisla- 
tive, and judicial. It was the application of those conceptions to 
a Federal State that constituted the invention. 

Webster made all possible when he conceived of a new Federal 
system armed with the independent power to tax. That funda- 
mental concept involved the creating of a distinct and self- 
sustaining Federal Government such as had never existed. In 
order to accomplish that result, Webster proposed (i) the division 
of a Federal State into three departments — executive, legislative, 
and judicial — the organization of each of which he worked out; 
(2) he proposed for the first time the organization of a Federal 
assembly with two chambers; (3) he outlined the existing judicial 
system of the United States, based on the supremacy of Federal 
law ; (4) he provided that the new Federal creation should be one 
of delegated powers, the residuum of power remaining in the 
States. 

I do not intend that Mr. Hunt shall by garbled extracts mis- 
represent what Webster did in outlining our Federal judicial 



Authorship of the Constitution of the United States. 9 

system. As he is not a jurist it may be that his blunders result 
from honest ignorance. An important count in Webster's indict- 
ment against the Articles of Confederation was that "they could 
institute no general judiciary powers." That difficulty he pro- 
posed to remove by creating a supreme court and such inferior 
courts of law and equity as the necessities of the country might 
require. He outlined the Supreme Court, with jurisdiction both 
original and appellate, in these terms: "That the supreme author- 
ity should be vested with powers to terminate and finally decide 
controversies arising between different States, I take it, will be 
universally admitted, but I humbly apprehend that an appeal from 
the first instance of trial ought to be admitted in causes of great 
moment on the same reasons that such appeals are admitted in all 
the States of Europe. It is well known to all men versed in courts 
that the first hearing of a cause rather gives an opening to thar 
evidence and reason which ought to decide it than such a full 
examination and thorough discussion, as should always precede a 
final judgment in causes of national consequence. A detail of 
reasons might be added, which I deem it unnecessary to enlarge on 
here." Thus emerged the splendid conception of the Supreme 
Court of the United States as it now exists, armed not only with 
original jurisdiction "to terminate and finally decide controversies 
arising between different States," but also with an appellate juris- 
diction " in causes of great moment on the same reasons that such 
appeals are admitted in all the States of Europe." As to the 
organization of the inferior Federal courts, Webster contented 
himself with this declaration: " To these I would add judges of law 
and chancery; but I fear they will not be very soon appointed — 
the one supposes the existence of law, the other of equity — and 
when we shall be altogether convinced of the absolute necessity of 
the real and effectual existence of both of these we shall probably 
appoint proper heads to preside in these departments." But the 
marvel of it all is that Webster should have provided for the com- 
plete supremacy of Federal law. In that way he paved the way 
for Marshall's great judgment in Cohens v. Virginia. He said that 
the laws of his new Federal creation should be supreme and en- 
forceable against the opposition of the States. His words are: 
" Further, I propose that if the execution of any act or order of the 
48031° — S. Doc. 787, 62-2 3 



io Authorship of the Constitution of the United States. 

supreme authority shall be opposed by force in any of the States 
(which God forbid) it shall be lawful for Congress to send into 
such State a sufficient force to suppress it. On the whole, I take 
it that the very existence and use of our Union essentially depends 
on the full energy and final effect of the laws made to support it, 
and therefore I sacrifice all other considerations to this energy 
and effect, and if our Union is not worth this purchase we must 
give it up — the nature of the thing does not admit of any other 
alternative." 

It is really very strange that even Mr. Hunt should not under- 
stand Webster's quaint yet lucid English when he describes, in 
his marvelous essay of October 12, 1787, the three coordinate 
powers that are to take part, under his novel scheme, in the enact- 
ment of Federal legislation. Under the Confederation all legisla- 
tion was enacted by a one-chamber assembly without the concur- 
rence of an executive. Under Webster's plan, now in force, Fed- 
eral legislation is enacted by three powers or bodies — the Execu- 
tive, the House of Representatives, and the Senate. If Mr. Hunt 
were a jurist he would understand that the President of the United 
States is a part of the lawmaking power. That is what Webster 
said; no more, no less. It is hardly worth while to prick such 
bubbles thrown off by a critic who thus exposes himself to ridi- 
cule in his frantic effort to misrepresent the work of one of the 
greatest characters in American history. 

As Mr. Hunt lives in the National Library in the midst of docu- 
ments, he should believe Ch.-V. Langlois, who has told us that 
"History is studied from documents. Documents are the traces 
which have been left by the thoughts and actions of men of former 
times. There is no substitute for documents; no documents, no 
history." He can put his hand every day upon an original copy 
of the epoch-making document of February 16, 1783, of 47 printed 
pages, and read it just as it was issued from the press of T. Brad- 
ford, who sold it within a few blocks of the doors of the Continental 
Congress in which Madison and Hamilton were sitting on the day 
of its publication and in which Charles Pinckney took his place 
not long afterwards. If Mr. Hunt were a more careful student of 
documents, he would understand that it was the contents of the 



Authorship of the Constitution of the United States. 1 1 

great document of February 16, 1783, that was presented to the 
Federal Convention of 1787 in the three "plans," so called, offered 
therein by Madison, Pinckney, and Hamilton. In the light of that 
fact, how amusing it is to have anyone say that the work of Web- 
ster was ignored by the convention. It was the basis of its pro- 
ceedings. Webster's invention was presented to the convention 
on the very first day it met for real business in the " plans " offered 
on that day by Randolph and Pinckney. From May 29 to the close 
the single question before the secret conclave, which worked only 
86 days, was as to the form in which the great invention of Feb- 
ruary 16, 1783, should be adapted to then existing conditions as a 
working system of government. 

Hannis Taylor. 
Washington, D. C, January 5, 1912. 



A RESTATEMENT OF THE SUBJECT. 

For personal reasons of its own the Nation undertook to sup- 
press some of the criticisms contained in the foregoing reply of the 
undersigned, without his knowledge or permission. In the De 
Orator e Cicero has said: 

Who does not know that it is the first and fundamental law of 
history that it should neither dare to say anything that is false, 
nor fear to say anything that is true, nor give any just suspicion of 
partiality on the one hand or of personal animosity on the other. 

Certainly under that rule there should be no publication of arf 
assault upon the fame of any of the fathers of the Republic in a 
public document, without the publication, in the same form, of 
the entire answer made at the time to such assault. I can not 
therefore doubt that the Senate will order the publication of the 
foregoing reply made to Mr. Hunt's article, republished as Senate 
Document No. 402, so that the people of this country may hear 
both sides of the matter. Those who are giving special study to 
the subject know that we are now only upon the threshold of the 
inquiry into the real history of the origin of the wonderful Consti- 
tution under which we live. No great subject was ever so shame- 
fully neglected as that has been. 

The Federal Convention of 1787, which shrouded its proceedings 
in a secrecy as profound as that which incloses a Masonic lodge, 
sealed its records at the close and committed them to Washington 
with the injunction "that he retain the Journal and other papers 
subject to the order of Congress if ever formed under the Constitu- 
tion. ' ' Not until 1 8 1 8 did Congress partially break the seal of that 
secrecy by a joint resolution directing the publication of the 
" Journal * * * and all acts and proceedings " of the conven- 

48031 — S. Doc. 787, 62-2 4 13 



14 Authorship of the Constitution of the United States. 

tion in possession of the Government. But through that dis- 
closure we received only a fragment, as the so-called Journal had 
been made up by an official secretary who, either through incom- 
petency or neglect, kept what, according to Adams "were no better 
than the daily minutes from which the regular Journal ought to 
have been but never was made out." The real record of the pro- 
ceedings of the convention, prepared by the semiofficial reporter, 
James Madison, and now embodied in the three volumes of his 
priceless "Papers," was not published by Gilpin until 1841. In 
that way 54 years passed by, after the adjournment of the conven- 
tion, before the full report of its secret proceedings was given to 
the world. 

Not until 67 years after the adjournment of the convention of 
1787 did an American attempt to write the History of the Origin, 
Foundation, and Adoption of the Constitution of the United 
States. That attempt, made by Mr. George Ticknor Curtis in 
1854, opens with the statement that "A special history of the 
origin and establishment of the Constitution of the United States 
has not yet found a place in our national literature." So little 
had been discovered, even at that late date, as to the history of 
the origin of the " wholly novel theory " distinctive of the Federal 
Government under which we now live, that Mr. Curtis could 
contribute to the subject nothing more definite than this misty 
platitude: 

The Constitution of the United States was eminently the creature 
of circumstances; not of circumstances blindly leading the blind 
to an unconscious submission to an accident, but of circumstances 
which offered an intelligent choice of the means of happiness, and 
opened, from the experience of the past, the plain path of duty 
and success, stretching onward to the future. 

During the half century of mystery and suppression that 
followed the adjournment of the Federal Convention it was that 
the mystical history of what actually took place in the secret 



Authorship of the Constitution of the United States. 15 

conclave crystallized into a series of nebulous and misleading 
impressions, so fixed in the minds of many that it is now difficult 
to dislodge them even with the aid of clear and explicit docu- 
mentary evidence. It was that period of mystery that gave 
birth to what has happily been termed the "inspiration theory," 
which pretends that at some time during the 86 working days 
of the convention there was evolved through a process, probably 
supernormal, from the combined brains of eminently wise men, 
called by Jefferson "an assembly of demigods," the entirely new 
creation, fully armed, just as Pallas was evolved from the brain 
of Jove. Von Hoist, with his critical and practical German 
mind, did not fail to perceive the absurdity, the childishness of 
what he well termed the "inspiration theory" by which he said* 
"the American people, in their vanity and too great self-appre- 
ciation, are fond of forgetting the dreadful struggle of 1787 and 
1788, or of employing it only as a name for the ' divine inspiration' 
which guided and enlightened the ' fathers' at Philadelphia. * * * 
This is not a mere idle phrase; it is one of the standing formulas in 
which the self-complacency and pride of a people who esteem 
themselves special objects of the care of the Ruler of the Universe 
find expression. We reproduce one illustration of this out of a 
whole multitude. In the North American Review (1862, i, 160) 
we read : ' Such a government we regard as more than the expres- 
sion of calm wisdom and lofty patriotism. It has its distinctively 
providential element. It was God's saving gift to a distracted 
and imperiled people. It was his creative fiat over a weltering 
chaos: 'Let a nation be born in a day.' " After ridiculing in that 
fashion the grotesque assumption he was the first to label the 
"inspiration theory," Van Hoist adds: 

"In Europe this view of the case has been generally accepted 
as correct." 

And here it is so deeply embedded in the minds of many of our 
older jurists and statesmen, who have ceased to be receptive of 



1 6 Authorship of the Constitution of the United States. 

new facts, that they resent, sometimes angrily, any attempt to 
disturb the illusions of their earlier years. And yet such a con- 
dition of things should not excite wonder. Sir Leslie Stephen 
said long ago: 

The ordinary mind is indifferent to the thoughts which occupy 
the philosopher, unless they promise an immediate material result. 
Mankind resents nothing so much as the intrusion upon them of a 
new and disturbing truth. The huge, dead weight of stupidity and 
indolence is always ready to smother audacious inquiries. 

After a twentieth-century mind trained in the historical school 
has been sickened by that kind of historical literature represented 
by the "inspiration theory," whose medieval flavor suggests the 
"Faust-book" from which Goethe drew the supernormal parts of 
his immortal epic, the practical question recurs: Is there the 
slightest evidence that the "wholly novel theory," the "great 
discovery in modern political science," as Tocqueville has called it, 
was created or evolved after the Federal Convention of 1787 
closed its doors and proceeded to business ? The records answer 
with a very emphatic " No." The clear and explicit documentary 
evidence now available puts the fact beyond all question that the 
"great discovery" was not only made and published four years 
before the convention met, but that is was taken to Philadelphia 
carefully formulated in three prearranged plans, identical in all 
vital particulars, two of which were presented during the first 
moments of the first day the convention met for real business. On 
May 29, after a notable speech, Gov. Randolph presented the 15 
resolutions embodying what is generally known as the Virginia 
plan, of which Madison was undoubtedly the draftsman. From his 
" Life" by Rives we can justly infer that for nearly a year before- 
hand Madison was at work on the Virginia plan. The moment 
Randolph concluded Charles Pinckney presented his plan or 
system. The event is thus recorded in the minutes of Yates: 
" Mr. C. Pinckney, a member from South Carolina, then added that 



Authorship of the Constitution of the United States. 1 7 

he had reduced his ideas of a new government to a system, which 
he then read." We know that Pinckney's plan or system was 
worked out by him at Charleston and described in his " Observa- 
tions " months before his departure from that city for Philadelphia. 

It is equally certain that Hamilton, with even greater care, 
elaborated his plan beforehand'. From his "Life" by his son 
we learn that, "In the course of his speech (which occupied 
five hours) he read his plan of government, not the propositions 
which are found in the printed Journal, but 'a full plan, so pre- 
pared that it might have gone into immediate effect if it had 
been adopted.' This plan consisted of 10 articles, each article 
being divided into sections." An inspection of the three pre- 
arranged plans, drafted so carefully by Madison, Pinckney, altd 
Hamilton, months before the convention met, at once fixes the 
fact that they are identical in every vital particular, because 
each embodied in its own way every element of "the great inven- 
tion," which consisted of a proposal (1) of a Federal Govern- 
ment, armed, for the first time in the world's history, with the 
independent power of taxation; (2) of a Federal Government, 
divided, for the first time in the world's history, into three depart- 
ments — legislative, executive, and judicial; (3) of a Federal 
Legislature, divided, for the first time in the world's history, into 
two chambers; (4) of a supreme Federal judiciary, armed, for 
the first time in the world's history, with the power to put the 
stamp of nullity on a national law; (5) of a Federal Government, 
operating, for the first time in the world's history, not on States 
as corporate bodies, but directly on individuals. 

It may safely be assumed that no student of the Constitution 
will ever hereafter have the hardihood to attempt to uphold the 
"inspiration theory" by contending that the "great discovery 
in modern political science " was made after the convention assem- 
bled. The records fix the fact that the "great discovery" was 

48031° — S. Doc. 787, 62-2 5 



1 8 Authorship of the Constitution of the United States. 

made before the convention met, and that it was therein pre- 
sented in three "plans," so called, formulated beforehand by- 
Madison, Pinckney, and Hamilton. The New Jersey plan is 
not to be considered, because it did not embody the "great dis- 
covery." It simply proposed amendments of the Articles of 
Confederation. The so-called "Connecticut plan," invented by 
Bancroft, never existed, as the records show, outside of his imag- 
ination. There were but three plans, all carefully formulated 
before the convention met, each embodying in a clear and posi- 
tive form the five new principles whose combination constituted 
the "great discovery." 

Senator Lodge, who has not yet opened his eyes to the new 
evidence, has lately restated what remains of the old theory in an 
address delivered in North Carolina on November 28, 1911, in 
this way : 

The first conception of our Constitution as an instrument of 
popular government, so long held unquestioned, was derived from 
the framers of the Constitution themselves. 

But the Senator does not assert that "the first conception" was 
drawn from "the framers," after the convention met for business. 
As Madison, Pinckney, and Hamilton, the draftsmen of the three 
plans, were all "framers of the Constitution," we must give the 
Senator the benefit of the doubt, and assume that he meant to say 
that "the first conception" came from their "plans," so carefully 
formulated beforehand. But one question remains. Were the 
three plans, identical in every vital particular, drawn from a com- 
mon source; or were their authors, working in isolation and far 
apart, inspired at or about the same moment, to make an identical 
invention for which the world had been waiting for centuries ? If 
such a miracle actually happened, it is far more startling than that 
involved in the turning of water into wine. 

It is not necessary, however, for us to rely either upon the 
"inspiration theory" or upon the "miraculous theory" for the 



Authorship of the Constitution of the United States. 19 

simple and commonplace reason that on February 16, 1783, the 
"great discovery " was published to the world, as his invention, by 
Pelatiah Webster in a tract of 47 printed pages, entitled "A Dis- 
sertation on the Political Union and Constitution of the Thirteen 
United States of North America, which is necessary to their preser- 
vation and happiness; humbly offered to the public by a citizen of 
Philadelphia." That publication came from the well-known 
press of " T. Bradford, in Front Street, three doors below the Coffee 
House," situated about four blocks from Independence Hall, in 
which the Continental Congress was then sitting. At the very 
moment Madison, then 32, and Hamilton, then 26, were actually 
present in Philadelphia as Members of the Congress, in which 
Charles Pinckney, then 25, took his place not long afterward!* 
Only the blind or infatuated will contend that these vigilant and 
ambitious young statesmen, intent upon improving conditions 
then crying out for a remedy, did not read and master the contents 
of the great document, the first to propose the construction of a new 
federal system, published " at the seat of government," under their 
very eyes, by Pelatiah Webster on February 16, 1783. 

Certainly this ripe financier and trained political economist of 
57 was far better equipped to solve a problem in its essence 
financial and commercial than either Madison, Pinckney, or 
Hamilton could have been at that time. The relations that 
existed between the mature man of contemplation and the 
younger men of action were just what they should have been. 
He formulated, in the light of his experience, the novel princi- 
ples which they were to translate into a working system of gov- 
ernment. The effect of Webster's initiative on Hamilton was 
almost instantaneous. On April 1, 1783, just six weeks after 
the publication of the great document, Hamilton expressed in 
Congress, for the first time, his desire "to see a general conven- 
tion take place, and that he would soon, in pursuance of instruc- 
tions from his constituents, propose to Congress a plan for that 



20 Authorship of the Constitution of the United States. 

purpose; the object would be to strengthen the Federal Consti- 
tution." In the month preceding Pelatiah Webster and Ham- 
ilton were acting together in another matter of grave public 
moment. When, in July, 1782, a petition was to be presented 
to Congress in behalf of "the deranged officers of the lines of 
Massachusetts and Connecticut," Webster, a native of the State 
last named, was appealed to for his influence. In a petition 
drawn in the noblest style and signed "Pelatiah Webster, Wil- 
liam Judd," he presented the case, which was finally referred to 
a special committee, composed of Mr. Peters, Mr. Hamilton, and 
Mr. Dyer. The report, which survives, in the handwriting of 
Alexander Hamilton, is dated March 6, 1783, just 18 days after 
the publication of the great paper of February 16 of that year. 
These facts I have extracted from the MS. Records of the Con- 
tinental Congress, No. 19, volume 6, folios 489-493, for the 
printing of which, unfortunately, no provision has yet been 
made. By these records the fact is fixed that as a public man 
Webster was as well known to Hamilton as he was to Madison. 
Who was Pelatiah Webster? He was one of the famous New 
England family which probably settled first in Massachusetts, 
and then sent one offshoot into New Hampshire, where Daniel 
was born at Salisbury in 1782, and another into Connecticut, 
where Pelatiah was born at Lebanon in 1726, and Noah, the lexi- 
cographer, at Hartford in 1758. Pelatiah graduated at Yale 
College in 1746, and in 1755 he settled at Philadelphia, where he 
became a prosperous merchant, meeting with such success as to 
earn ample leisure for study and writing. During the British 
occupation of the city in February, 1778, on account of his ardor 
in the patriotic cause he was arrested at night, probably by order 
of Gen. Howe, and closely confined in the city prison for four 
months, a large part of his property being confiscated to the 
King's stores. By the grandson of his beloved daughter Ruth 



Authorship of the Constitution of the United States. 21 

the undersigned has lately been given an extract from a letter 
written by Pelatiah Webster while in prison, in which he says: 
I don't know nor have the least intimation for what I am con- 
fined or how long I am to continue. I am your father and surest 
friend. 

P. Webster. 

He had a son, Pelatiah Webster, jr., who was in the Conti- 
nental Army. From the same source I have received an ex- 
tract from a letter written by him on September 10, 1777, in 
which he says: 

Our armies have begun to fight below; there is much, very 
much, depending on which side the victory may turn. We are 
all big with anxiety and flatter ourselves that our prospects of 
success are now much greater than they have been since th^ 
war first commenced. Some think Howe will get to the city. 
We most generally think he will get a much more severe drubbing 
than ever he had. God only knows what the event may be. 

As early as October, 1776, Pelatiah Webster began to write on 
the currency, and three years later he began the publication of 
the famous series of " Essays on free trade and finance," of which 
seven numbers were issued in 1785. In the next year appeared 
"An essay on credit: Reasons for repealing the act of the legis- 
lature revoking the charter of the Bank of North America." 
Finally, in 1791, he republished his various papers in a work 
entitled "Political Essays on the Nature and Operation of 
Money, Public Finances, and other Subjects Published During 
the American War and Continued up to the Present Year." 
That volume, which displays a marvelous mastery of the subject 
to which it is devoted, continues as the leading authority upon 
the finances of that period. 

If any proof of that assertion is required, it may be found in the 
great work of Prof. Sumner, entitled " The Financier and the 
Finances of the American Revolution," which quotes Webster very 

48031° — S. Doc. 787, 62-2 6 



22 Authorship of the Constitution of the United States. 

often. Prof. Sumner explains how it was that Webster and 
Hamilton made Robert Morris possible, when he says : 

In February, 1780, Pelatiah Webster urged the appointment of 
a financier — that is, of a competent single officer — to take charge 
of the finances in place of the committees or boards who had 
hitherto been intrusted with them. In September of the same 
year Alexander Hamilton urged the same view, that there should be 
single responsible heads of great departments; "Mr. Robert Morris 
would have many things in his favor for the department of finance." 

Webster was the American Adam Smith of that epoch, with his 
eyes fixed as an expert on all the great questions touching eco- 
nomics and the currency. He was thus the first to see that the 
management of the finances of the Revolution should be taken 
away from the irresponsible boards or committees of Congress in 
order to be placed in the responsible hands of a minister of finance. 
After Webster had thus virtually created the new office, Hamilton 
found for it its first incumbent, Robert Morris. Is it strange that 
such a man, living at the seat of government, should have been 
consulted by Congress as to the resources of the country ? From 
Dexter's Yale Biographies and Annals, ii, 97 to 102, which enu- 
merate 27 of Webster's publications, we learn that "it is a matter 
of tradition that Members of Congress, especially the Connecticut 
delegates, were in the habit of passing the evenings with him, to 
consult him upon financial and political concerns." 

Will any practical man of affairs, unaffected by illusions, find 
it hard to believe, when aided by clear and explicit documentary 
evidence, that the very grave financial and commercial problems 
pending in February, 1783, were solved by the greatest economist 
and financier of that epoch, who, at that moment, was devoting 
his life to the task? What were the financial and commercial 
problems pressing upon the country at that time ? The cessation 
of hostilities with Great Britain, followed as it was by the signing 
of the preliminary articles of peace at Paris, January 20, 1783, had 



Authorship of the Constitution of the United States. 23 

brought the financiers of the Revolution face to face with the 
mighty problem of providing, without any visible means, for the 
debts that represented the cost of victory. In estimating that 
cost Congress said: 

The amount of these debts, as far as they can now be ascer- 
tained, is $42,000,375. * * * The amount of the annual in- 
terest is computed to be $2,415,956. Funds, therefore, which 
will certainly and punctually produce this sum at least must 
be provided. [See Madison Papers, Gilpin; 1 Appendix, VI.] 

No Federal Government that had existed anywhere in the world 
down to that time had ever been armed with the power to levy a 
penny of taxes on its own account. The Continental Congress like 
all its predecessors from the days of the Greek Leagues did not* 
possess to the slightest extent the taxing power. It was entirely 
dependent on the old quota system through which it could only 
draw voluntary contributions from the States as States. Since 
February 3, 1781, Congress had been imploring the States so to 
amend the Articles of Confederation as to permit it to levy a tax 
on imports for the term of 25 years in such a way as to produce 
about one million a year. That prayer would have been granted 
had it not been for the action of Rhode Island, whose assembly 
on November 1, 1782, unanimously refused to concede to Congress 
the right to levy a tax on imports in any form. From that atti- 
tude Rhode Island never receded, despite Washington's circular 
letter to the governors of all the States, urging the necessity of 
granting to Congress some power to provide a national revenue, 
and despite Congress's frantic appeal to the States, in the final 
resolution of April 18, 1783, for power to levy specific duties on 
certain enumerated articles, and 5 per cent on others. 

The selfish motive that prompted Rhode Island's refusal leads 
us from the financial to the commercial question. Rhode Island 
had a customhouse, and she possessed the power to levy a tariff 
of her own. The maritime States had a great advantage in that 



24 Authorship of the Constitution of the United States. 

regard. More than half the goods consumed in New Jersey, Con- 
necticut, Vermont, and in the western parts of Massachusetts were 
brought to New York, with her splendid harbor, so capable of a 
world-wide commerce, and with rivers flowing directly to the sea, 
to Delaware and Chesapeake Bays, to the Mississippi, and to the 
watercourse of the St. Lawrence. Each State was attempting to 
regulate commerce on its own account and in its own interest. 
Thus the country was distracted by commercial conflicts which 
made it imperative that Congress should be armed with adequate 
power to regulate trade. Something had to be done to prevent the 
enactments of one State to the injury of the trade of the other and 
to establish a system intelligible to foreigners trading with this 
country. The British ambassador at Paris, when he was notified 
by the American commissioners in 1 784 that they had full power 
to negotiate a commercial treaty with Great Britain, replied, after 
consulting with English merchants trading with North America, 
that "the apparent determination of the respective States to 
regulate their own separate interests renders it absolutely 
necessary toward forming a permanent system of commerce that 
my court should be informed how far the commissioners can be 
duly authorized to enter into any engagements with Great 
Britain which it may not be in the power of any one of the States 
to render totally fruitless and ineffectual." In 1785 New York 
laid a double duty on all goods whatever imported in British 
ships, and in the same year Pennsylvania passed the first of a 
series of tariff acts designed to tax the whole community for the 
benefit of a few manufacturers. 

As an economist and financier it was Pelatiah Webster's dream 
to create an entirely new system of Federal Government — armed, 
first, with the independent power of Federal taxation; second, 
with the power to regulate trade between the States and with 
foreign nations. In order to make way for his new system he knew 



Authorship of the Constitution of the United States. 25 

it was absolutely necessary to wipe out as a whole the Articles of 
Confederation. In denouncing that impotent league (it was not 
a government) he said : 

But on trial of it in practice it was found to be extremely weak, 
defective, totally inefficient, and altogether inadequate to its great 
ends and purposes, for — 

1. It blended the legislative and executive powers together in one 
body. 

2. This body, viz, Congress, consisted of but one house, with- 
out any check upon their resolutions. 

3. The powers of Congress in very few instances were definitive 
and final ; in the most important articles of government they could 
do no more than recommend to the several States, the consent of 
every one of which was necessary to give legal sanction to any^ 
act so recommended. 

4. They could assess and levy no taxes. 

5. They could institute and execute no punishments except in 
the military department. 

6. They had no power of deciding or controlling the contentions 
and disputes of different States with each other. 

7. They could not regulate the general trade; or 

8. Even make laws to secure either public treaties with foreign 
states, or the persons of public ambassadors, or to punish viola- 
tions or injuries done to either of them. 

9. They could institute no general judiciary powers. 

10. They could regulate no public roads, canals, or inland 
navigation. 

Impelled by such convictions, which are the best index to his 
work, completed two years later, Webster, as early as 1781 — when 
no one else had dreamed of anything beyond amendments of the Articles 
of Confederation — proposed, as Madison tells us in his record of ' 
events, the entire abolition of the then existing Constitution. As 
Webster himself tells us at a little later time: " I was then pretty 
much at leisure and was fully of opinion {though the sentiment at 
that time would not very well bear) that it would be ten times easier 
48031 — S. Doc. 787, 62-2 7 



26 Authorship of the Constitution of the United States. 

to form a new constitution than to mend the old one." Thus, in 
the year in which the battle of Yorktown was won — a victory 
that marked the real end of the War of the Revolution— Pelatiah 
Webster, "after discussing the fiscal system of the United States, 
and suggesting, among other remedial provisions, one including a 
national bank," was the first to indicate "the necessity of their 
calling a Continental Convention for the express purpose of ascer- 
taining, defining, enlarging, and limiting the duties and powers of 
their Constitution." Having thus proposed in 1781, in advance 
of anyone else, the calling of the "Continental Convention" that 
finally met at Philadelphia in May, 1787, he set himself to work 
to devise and submit to the American people an entirely new 
scheme of federal government as a substitute for the hopeless 
failure under which they were then living. 

On February 16, 1783, Pelatiah Webster published to the world 
at Philadelphia, through the press of T. Bradford, in a pamphlet 
of 47 pages, the "great discovery in modern political science" 
now embodied in the existing Constitution of the United States. 
He perfectly understood that he was putting forth a new creation, 
because he has told us, in express terms, that it was his purpose to 
construct an entirely new constitution as a systematic whole. 
His words are these : 

As the fate then of all governments depends much upon their 
political constitutions, they become an object of mighty moment 
to the happiness and well-being of society; and as the framing 0} 
such a constitution requires great knowledge of the rights of men 
and societies, as well as of the interests, circumstances, and even 
prejudices of the several parts of the community or commonwealth, 
for which it is intended; it becomes a very complex subject and 
of course requires steadiness and comprehension of thought, as 
well as great knowledge of men and things, to do it properly. / 
shall, however, attempt with my best abilities, and hope from the candor 
of the public to escape censure, if I can not merit praise. * * * I 



Authorship of the Constitution of the United States. 27 

have not the vanity to imagine that my sentiments may be adopted ; 
I shall have all the reward I wish or expect if my dissertation 
shall throw any light on the great subject, shall excite an emula- 
tion of inquiry, and animate some abler genius to form a plan of 
greater perfection, less objectionable, and more useful. * * * 

I hope the reader will please consider that these are the original 
thoughts of a private individual, dictated by the nature of the 
subject only, long before the important theme became the great object 
of discussion in the most dignified and important assembly which ever 
sat or decided in America. 

That assertion is supported by the entire body of contempora- 
neous history. The silly statement often made that about that 
time (Feb. 16, 1783) such a scheme of government as Webster 
proposed was "in the air" is simply mendacious. There is not a v 
scintilla of contemporaneous evidence to support such a Mun- 
chausen story. It was years afterwards before any proposals at 
all like it were made. Prior to Webster's publication there is no 
trace of any other plan or project of a new Constitution that can 
be placed in contrast or rivalry with his "wholly novel theory." 
Thus the great architect stands alone and isolated from all rivals 
in the solitude of his own originality. The epoch-making docu- 
ment in question is so systematic, so lucid, with every thought 
worked out in detail, that it is easy to follow the mental processes 
through which the " great discovery in modern political science " 
was evolved from the brain of the daring innovator who was at 
once statesman, economist, and financier. The overshadowing 
practical difficulty to be removed was that involved in the fact 
that the one-chamber Congress then existing possessed no power 
to tax. To use Webster's own words: "They could assess and 
levy no taxes." No Federal Government that had ever existed 
had been armed with the power to tax. Webster's fundamental 
concept, without a precedent in the history of the world, was 
a Federal Government armed with complete and self-executing 



28 Authorship of the Constitution of the United States. 

taxing power. As a financier he argued out his novel proposal at 
length. He said: 

I begin with my first and great principle, viz: That the Con- 
stitution must vest powers in every department sufficient to secure 
and make effectual the ends of it. 

The supreme authority must have power of making war and 
peace, of appointing armies and navies, of appointing officers 
both civil and military, of making contracts, of emitting, coin- 
ing, and borrowing money, of regulating trade, of making 
treaties with foreign powers, of establishing post offices, and in 
short of doing everything which the well-being of the common- 
wealth may require, and which is not compatible to any particular 
State, all of which require money and can not possibly be made 
effectual without it. They must therefore of necessity be vested with 
power of taxation. I know this is a most important and weighty 
truth, a dreadful engine of oppression, tyranny, and injury when ill 
used; yet, from the necessity of the case, it must be admitted. * * * 

To make all these payments dependent on the votes of 13 
popular assemblies, who will judge of the propriety of every con- 
tract and every occasion of money, and grant or withhold supplies, 
according to their opinions, whilst at the same time the operations 
of the whole may be stopped by the vote of a single one of them, 
is absurd. * * * This tax can be laid by the supreme authority 
much mot e conveniently than by the particular assemblies, and would 
in no case be subject to their repeals or modifications, and of course 
the public credit would never be dependent on or liable to bankruptcy 
by the humors of any particular assembly. 

Out of that brilliant and daring proposal to arm a Federal 
assembly with "the supreme authority" to levy all kinds of 
Federal taxes, regardless of the "repeals or modifications" of the 
States composing the Union, arose the existing Constitution of 
the United States. The moment it was settled that such a su- 
preme Government was to be established it followed that such a 
Government must be completely organized, with the authority 
to execute its own laws and decrees directly upon individuals 
through machinery adequate to that end. From the original 



Authorship of the Constitution of the United States. 29 

concept necessarily resulted a completely organized Government 
"with the usual branches, legislative, executive, and judicial; 
with the direct power of taxation and the other usual powers of a 
Government; with its Army, its Navy, its civil service, and all the 
usual apparatus of a Government, all bearing directly upon every 
citizen of the Union without any reference to the governments of 
the several States." (Freeman, History of Federal Government, 
ii, n.) 

The moment Webster saw that his new creation must be a 
strictly organized and self-sustaining government, he proposed to 
divide it into three departments — legislative, executive, and judi- 
cial — as that partial division then existed in the State constitutions. 
There never had been a Federal Government so divided in the 
world's history. There was no such division in the Government 
created by the Articles of Confederation. To use again Webster's 
words: " It [the confederation] blended the legislative and execu- 
tive powers together in one body " [the Continental Congress]. It 
follows, therefore, that Webster's second proposal to divide a Fed- 
eral Government into three departments — legislative, executive, 
and judicial — was but little less bold than his first, which involved 
the arming of such a creation with the independent power of taxa- 
tion. And yet some superficial critics have not had the acumen to 
draw the distinction between the dividing of the government of a 
single State like England or Virginia into three departments, and 
the dividing of a Federal State into three departments. The divi- 
sion of the Government of a single State in that way had long been 
known. It was Webster who first conceived the idea involved in 
the application of such a division to a Federal system, an innova- 
tion that resulted in momentous consequences. 

As the Articles of Confederation did not provide for an executive 
of any kind, the people of this country had never heard of a Presi- 
dent of the United States, much less of a President surrounded by 
a Cabinet council. Webster was the first to provide for both. He 

48031° — S. Doc. 787, 62-2 8 



30 Authorship of the Constitution of the United States. 

proposed that the executive power should be vested in a President, 
surrounded by a Cabinet or council composed of the " great minis- 
ters of state," such President to be elected by Congress, as the 
President of France is now elected. "The financier manages the 
whole subject of revenues and expenditures, the Secretary of State 
takes knowledge of the general policy and internal government, 
the minister of war presides in the whole business of war and 
defense, and the minister of foreign affairs regards the whole state 
of the Nation, as it stands related to, or connected with, all foreign 
powers." Later on he says the ^-great ministers of state shall 
superintend all the executive departments and appoint all execu- 
tive officers, who shall ever be accountable and removable for just 
cause by them or Congress, i. e., either of them." 

Just at. the State constitutions admonished WeDster to split 
the new Federal Government into three departments, executive, 
legislative, and judicial, so the bicameral State legislatures ad- 
monished him to split the one-chamber Congress of the Confed- 
eration into two chambers, an upper and a lower House. As the 
draftsman of the Articles of Confederation, Franklin was content 
to follow a model 2,000 years old. All Federal assemblies down to 
that time had consisted of a single chamber. Therefore Franklin 
made the Continental Congress to consist of only one chamber. 
In criticizing Franklin's work Webster said: "This body, viz, 
Congress, consisted of but one House, without any check upon their 
resolution." As an improvement he proposed "that Congress 
shall consist of two chambers, an upper and a lower House, or Senate 
and Commons, with the concurrence of both necessary to every 
act, and that every State send one or more delegates to each 
House. This will subject every act to two discussions before 
two distinct chambers of men equally qualified for the debate, 
equally masters of the subject, and of equal ambitions in the 
decision. These two Houses will be governed by the same natural 
motives and interests, viz, the good of the Commonwealth and 



Authorship of the Constitution of the United States. 3 1 

the approbation of the people." In commenting upon the man- 
ner in which the Members should be chosen Webster said: 

The delegates which are to form that august body, which are 
to hold and exercise the supreme authority, ought to be appointed 
by the States in any manner they please, in which they should 
not be limited by any restrictions; their own dignity and the 
weight they will hold in the great public council will always 
depend on the abilities of the persons they appoint to represent 
them there. 

Finally he said: 

It is necessary that Congress should have all usual and neces- 
sary powers of self-preservation and order, e. g., to imprison 
for contempt, insult, or interruption, etc., and to expel their 
own Members for due causes, among which I would rank that 
of nonattendance on the House, or partial attendance without 
such excuse as shall satisfy the House. 

In thus defining the constitution of the American Congress as 
it exists to-day Webster provided even for details. Never before 
had the world heard of a Federal assembly of two chambers 
instead of one. And yet the American Congress thus brought 
into being has never so far recognized the existence of its creator. 
It has "carved not a line, it has raised not a stone; it has left 
him alone in his glory." 

An important count in Webster's indictment against the Arti- 
cles of Confederation was that "they could institute no general 
judiciary powers." That difficulty he proposed to remove in his 
new system by creating a Supreme Court, with jurisdiction 
original and appellate, and such inferior courts of law and equity 
as the necessities of the country might require. He outlined 
the Supreme Court, with jurisdiction both original and appellate, 
in these terms: 

That the supreme authority should be vested with powers to 
terminate and finally decide controversies arising between differ- 
ent States, I take it, will be universally admitted, but I humbly 
apprehend that an appeal from the first instance of trial ought 



32 Authorship of the Constitution of the United States. 

to be admitted in causes of great moment, on the same reasons that 
such appeals are admitted in all the States of Europe. It is well 
known to all men versed in courts that the first hearing of a cause 
rather gives an opening to that evidence and reason which ought 
to decide it than such a full examination and thorough discussion 
as should always precede a final judgment in causes of national 
consequence. A detail of reasons might be added, which I deem 
it unnecessary to enlarge on here. 

Thus emerged, for the first time, the splendid conception of the 
Supreme Court of the United States as it now exists, armed not 
only with original jurisdiction "to terminate and finally decide 
controversies arising between different States," but also with an 
appellate jurisdiction "in causes of great moment on the same 
reasons that such appeals are admitted in all the States of Europe." 
As to the inferior Federal courts, he concluded with this declara- 
tion: 

To these I would add judges of law and chancery; but I fear 
they will not be very soon appointed — the one supposes the exist- 
ence of law, the other of equity — and when we shall be altogether 
convinced of the absolute necessity of the real and effectual exist- 
ence of both of these, we shall probably appoint proper heads to 
preside in these departments. 

When our Federal judicial system, as thus designed by Webster, 
found a real expounder in Marshall, one of the gravest tasks he 
was called upon to perform was that involved in the establishment 
of the constitutional supremacy of the Supreme Court over judg- 
ments of State courts denying Federal rights. In the great case of 
Cohens v. Virginia (6 Wheat., 264), presenting the solemn refusal 
of the Virginia Court of Appeals to obey the mandate of the 
Supreme Court of the United States, the ultimate question involved 
was the supremacy of Federal law. It is hard not to marvel when 
we see how perfectly Webster anticipated and provided for that 
very contingency when he said: 

(1) No laws of any State whatever, which do not carry in them a 
force which extends to their effectual and final execution, can 



Authorship of the Constitution of the United States. 33 

afford a certain or sufficient security to the subject. This is too 
plain to need any proof. (2) Laws or ordinances of any kind 
(especially of august bodies of high dignity and consequence) 
which fail of execution, are much worse than none. They weaken 
the government, expose it to contempt, destroy the confidence of 
all men, native and foreigners, on it, and expose both aggregate 
bodies and individuals who have placed confidence in it to many 
ruinous disappointments which they would have escaped had no 
law or ordinance been made ; therefore, (3) To appoint a Congress 
with powers to do all acts necessary for the support and uses of the 
Union, and at the same time to leave all the States at liberty to 
obey them or not with impunity is, in every view, the greatest 
absurdity. Further I propose that if the execution of any act or 
order of the supreme authority shall be opposed by force in any of the 
States (which God forbid), it shall be lawful for Congress to send 
into such State a sufficient force to suppress it. On the whole, I 
take it that the very existence and use of our Union essentially 
depends on the full energy and final effect of the laws made to 
support it, and therefore I sacrifice all other considerations to this 
energy and effect, and if our Union is not worth this purchase, we 
must give it up — the nature of the thing does not admit of any 
other alternative. 

That splendid appeal for the supremacy of Federal law under the 
new system was the inevitable corollary of the primary concept of a 
self-sustaining Federal government with the independent power 
of taxation. What eyes save those of a seer could have thus fore- 
seen all that was to come ? 

Webster was no more eager, however, to arm his new Federal 
creation with supremacy in the event that its laws or decrees 
should be defied by the States than he was to guard against intru- 
sion such rights as the States reserved to themselves. Nothing 
could be more explicit on that subject than these declarations: 

II. But now the great and most difficult part of this weighty 

subject remains to be considered, viz, how these supreme powers 

are to be constituted in such manner that they may be able to 

exercise with full force and effect the vast authorities committed 

4803 1° — S. Doc. 787, 62-2 9 



34 Authorship of the Constitution of the United States. 

to them for the good and well being of the United States, and 
yet, be so checked and restrained from exercising them to the injury 
and ruin of the States that we may with safety trust them with a 
commission of such vast magnitude (the first definition of State 
rights) — and may Almighty Wisdom direct my pen in this ardu- 
ous discussion. * * * I propose further that the powers of 
Congress, and all the other departments acting under them, shall 
be restricted to such matters only of general necessity and utility 
to all the States as can not come within the jurisdiction of any 
particular State, or to which the authority of any particular 
State is not competent, so that each particular State shall enjoy 
all sovereignty and supreme authority to all intents and purposes, 
excepting only those high authorities and powers by them delegated 
to Congress for the purposes of the general union. 

Here we have in advance, and in a more elaborate form, the 
tenth amendment, which declares that "the powers not dele- 
gated to the United States by the Constitution, nor prohibited by 
it to the States, are reserved to the States respectively, or to the 
people." Nothing could be more clear and explicit than Webster's 
declaration that his new Federal fabric was to be one of dele- 
gated and strictly limited powers, and yet one absolutely supreme 
within the limits of its jurisdiction as defined by its own tribunals. 

Approaching his fundamental concept from the commercial side, 
Webster manifested an almost supernormal prescience as to future 
conditions, so far as they involved the need for uniformity of law 
in general and uniformity of congressional legislation affecting 
trade between the States in particular. He said: 

Merchants must from the nature of their business certainly 
understand the interests and resources of the country the best 
of any men in it. * * * I therefore humbly propose, if the 
merchants in the several States are disposed to send delegates 
from their body to meet and attend the sitting of Congress, that 
they shall be permitted to form a chamber of commerce, and 
their advice to Congress be demanded and admitted concerning 
all bills before Congress, as far as the same may affect the trade 



Authorship of the Constitution of the United States. 35 

of the States. Besides the benefits which Congress may receive 
from the institution, a chamber of commerce, composed of mem- 
bers from all trading towns in the States, if properly instituted 
and conducted, will prove very many, I might almost say innu- 
merable, advantages of singular utility to all the States. 
It will give dignity, uniformity, and safety to our trade. 

That recommendation was the only basic part of Webster's 
plan which the convention rejected. But a century later his 
wisdom and foresight were vindicated by the creation of the 
Department of Commerce and Labor, which is now performing, 
in a general way, the functions which would have been per- 
formed by the National Chamber of Commerce outlined in the 
plan of February 16, 1783. It is certainly remarkable that at 
this very moment the newspapers of the country, under the 
head fine, "United States Chamber of Commerce meets wide 
approval," are making this announcement: 

Applications from the principal commercial and trade organiza- 
tions of the country for membership in the Chamber of Commerce 
of the United States of America are being received daily at the 
Evans Building, headquarters here, by John Joy Edson. The 
700 representatives of the various organizations invited here by 
President Taft, through Secretary Nagel, and the Bureau of Manu- 
factures, Department of Commerce and Labor, are fulfilling their 
pledge, taken at the convention recently, to make the new national 
chamber a success, and to recommend to their organizations the 
adoption of the tentative plan, decided upon at the meeting, 
enabling them to become members. Already the necessary steps 
have been taken by the bodies in the large American cities. In 
order to participate, the New York Chamber of Commerce pur- 
poses amending its charter. 

At last the cycle has come round — the wisdom and foresight of 
Pelatiah Webster has now been vindicated in every particular. 

The statement has been made heretofore that on the very day on 
which the epoch-making paper of February 16, 1783, was pub- 
lished at the well-known press of T. Bradford, Philadelphia, within 



36 Authorship of the Constitution of the United States. 

about four blocks of Independence Hall, where the Congress was 
then sitting, Madison, then 32, and Hamilton, then 26, were in 
their places in that assembly in which Charles Pinckney, then 25, 
took his place not long afterwards. The "great discovery in 
modern political science" was thus given to these three youthful, 
vigilant, and patriotic statesmen as it was given to all the world, 
and it was their right and duty to reflect upon it and learn from it 
during the four eventful years that were to intervene before the 
meeting of the Federal Convention in May, 1787. An account 
has been given already of the drafting of the three "plans" so 
called, by Madison, Pinckney, and Hamilton, many months before 
the august assembly actually met. In the "plan" which each 
took with him to the convention the five new and basic principles 
that constitute the discovery were stated, with variations of de- 
tail, of course, in each. Ch.-V. Langlois has well said: 

History is studied from documents. Documents are the traces 
which have been left by the thoughts and actions of men of former 
times. There is no substitute for documents; no documents, no 
history. 

The problem involved in this matter can be solved, through a 
comparison of four documents, with almost the precision of a 
mathematical demonstration. The trained student has only to 
spread before him the original document of February 16, 1783, 
and then place, side by side, beneath it the three "plans," or 
rather paraphrases of it, taken to the convention by Madison, 
Pinckney, and Hamilton. 

The conclusion thus becomes irresistible that the three "plans" 
were drawn from the common source, equally accessible to each 
draftsman, unless we substitute for that normal conclusion the 
impossible assumption that, in some miraculous way, the "great 
discovery" was revealed, during the few months preceding the 
meeting of the convention, to three youthful statesmen working 
in isolation and far removed from each other. And here let it be 



Authorship of the Constitution of the United States. 37 

remembered that no one of the three ever claimed to be the author 
of it. Such a claim upon the part of either would have put each 
at war with the other, a conflict that never existed. If they failed 
in any duty, it was in the negative one of declaring at the time that 
the work of each was based on a preexisting invention, to which 
no one of them made any personal claim whatever. It is about 
time for serious men, especially those who claim to be historical 
scholars, to cease beating their heads against the stone wall now 
made up of clear, explicit, and unimpeachable documents that 
relieve us of the absurdities imposed by the "inspiration theory" 
and the "miraculous theory." Such performances as that of Mr. 
Hunt only emphasize the declaration of Sir Leslie Stephen that 
" mankind resent nothing so much as the intrusion upon them of 
a new and disturbing truth. The huge, dead weight of stupidity 
and indolence is always ready to smother audacious inquiries." 
The inquiry in this case is, however, too obvious and easy to be 
called "audacious." The time has come for historical scholars 
worthy of the name to look with pity and disdain upon the " inspi- 
ration theory" and the "miraculous theory." 

It is a comfort to know that there are a large number of sane 
people in this country, unlike the Abbe* Vertot, who exclaimed, 
" My siege is finished," when offered new documents that stultified 
his narrative. The following may be given as specimens of the 
views of those who are willing to consider newly discovered evi- 
dence, even when it explodes old superstitions. Even The Nation, 
generally captious, always critical, has been frank enough to admit 
the truth. It has said: 

The "entirely new plan" in question, that of a Federal Union 
with adequate financial powers, appears to have been first clearly 
set forth by Pelatiah Webster in a pamphlet entitled "A Disser- 
tation on the Political Union and Constitution of the Thirteen 
United States of North America," printed at Philadelphia in Feb- 
ruary, 1783. The recent reprint of this interesting document and 
its wide dissemination through the pages of the Congressional 
48031 — S. Doc. 787, 62-2 10 



38 Authorship of the Constitution or the United States. 

Record have called attention, virtually for the first time, to what 
is undoubtedly the most important single documentary anticipa- 
tion of the Constitution and places Webster, hitherto known chiefly 
as a writer on finance, in the front rank of early American publi- 
cists. * * * At any rate, the story of the origin of the Consti- 
tution must henceforth be told in the light of what Mr. Taylor 
very properly regards as a discovery, and for his own connection 
with that discovery he is entitled to hearty praise. 

In speaking of Mr. Taylor's " The Origin and Growth 0} the Amer- 
ican Constitution" the Journal of Commerce, generally regarded as 
a conservative publication, has said : 

The distinctive value of the present volume lies in the fact that 
the author has discovered and here places in its true light, for the 
first time, the document out of which our Constitution grew — the 
Pelatiah Webster pamphlet. 

The New Orleans Picayune, equally conservative, has said: 

There is one fact which gives this volume a unique and important 
interest — the presentation of the Pelatiah Webster document re- 
cently discovered by Mr. Taylor, and undoubtedly the source of 
our Constitution. 

In the North Carolina Review a fully equipped historical 
scholar, in the course of a very elaborate criticism, has said: 

The principal object of his book is to present Pelatiah Webster 
as the true creator of our Federal Constitution, and thus he is 
able to introduce into his narrative a human element, which brings 
the reader into closer, more intimate contact with the whole 
drama performed at Philadelphia in 1787 than any other treatise 
which has preceded it. As this notable work presents the story 
of our Federal Constitution in a wholly new light, which will 
probably revolutionize methods of studying our constitutional 
history in the future, I shall examine the author's theory with 
some detail. 

The conclusion reached is thus stated : 

Whether Mr. Taylor has spoken the final word on the subject 
remains to be seen in the light of the historical criticism, both 



Authorship of the Constitution of the United States. 39 

favorable and unfavorable, which his book is certain to bring 
forth. At any rate, in a work of rare interest, he has placed the 
burden of proof on the critic who undertakes to reject his theory, 
and until this burden is successfully assumed by some scholar of 
equal attainments, Mr. Taylor may rest secure in his position as 
the discoverer of Pelatiah Webster, " the architect of our Federal 
Constitution." 

Certainly in recent years no justice of the Supreme Court of the 
United States has stood higher as a critical student of the history 
of the Constitution than Mr. Justice Brown. After a careful 
examination of the question at issue, he has written as follows : 

Supreme Court op the United States, 

Washington, January 26, igi2. 
My Dear Dr. Taylor: I have not failed to recognize the great 
value of the services you have rendered the country in rescuing 
from oblivion the name of Pelatiah Webster, who is shown by your 
researches to have originated the idea of our Federal Government 
as subsequently developed in the Constitution of the United States. 
I think it entirely befitting that Congress should put itself on rec- 
ord as acknowledging the services thus rendered by Mr. Webster 
and embodying their views in some substantial tribute to his 
memory. 

Very truly, yours, H. B. Brown. 

Hon. Hannis Taylor, 

Maryland Building. 

No just or comprehensive view of this great subject can be taken 
by anyone who fails to recognize the true relation in which Pela- 
tiah Webster, the architect, stands to the master builders who, as 
members of the Federal Convention, transformed his dream into 
a reality. No critical mind should confuse the sphere that belongs 
to the bold innovator who made the great advance in modern 
political science by inventing, in 1783, an entirely new plan of 
Federal Government with the sphere that belongs to the practi- 
cal statesmen who, in 1787, seized upon that plan and embodied 
it in a constitution. Each achievement, entirely distinct from 



40 Authorship of the Constitution of the United States. 

the other, is entitled to the honor of immortality. The records 
fix the fact that from May 27, when the plans were submitted, to 
the close, the single question before the secret conclave of 1787 
was as to the form in which the great invention of February 16, 
1783, should be adapted to then existing conditions as a working 
system of government. The practical result achieved, under the 
most difficult circumstances possible, was just as remarkable as 
the invention itself. The philosophers, statesmen, jurists, war- 
riors, experienced men of affairs who composed the august assem- 
bly that wrought at Philadelphia in 1787 may be compared, as to 
genius and learning, with the master spirits of any age. No 
assembly so small — it numbered only 55 delegates — was ever 
dominated by so many men of the highest order. They need not 
strut in borrowed plumes; they need no fame that belongs to 
another. The most ardent worshiper of the master builders would 
only belittle their immortality if he fancied that it could be at all 
dimmed by the rendition of tardy justice to the great architect, 
the man of contemplation, who was their natural, perhaps their 
necessary, forerunner. 

When we look back and view as a whole the entire procession of 
events, advancing in regular order from the time the tie that bound 
us to the mother country was severed until the present day, it 
appears that our constitutional history has been dominated by a 
great triumvirate — Washington, Pelatiah Webster, and John 
Marshall — whose achievements must be considered in connection 
with that of the Federal Convention of 1787. The great drama 
in the history of humanity that opened with the invention of the 
"wholly novel theory," February 16, 1783, closed in triumph with 
its final acceptance as a working system of government by the 
last of the 13 States, May 29, 1790. Its first act was one of 
creation, proceeding from a single mind that wrought a revolution 
in political science by making an entirely new combination of 
political principles without a prototype in history. Its second 



Authorship of the Constitution of the United States. 41 

act was one of adaptation, proceeding from a deliberative body 
of marvelous men, at once so scientific and so practical as to be 
able to readjust a novel and highly complex political theory and 
then apply it as a working system of government under the most 
difficult of all circumstances. Its third act was one of coercion, 
proceeding from the combined pressure of compelling conditions 
backed by the driving force of an almost irresistible personality 
intent upon saving the States from anarchy by subjecting them 
to the yoke of an equitable and indestructible union. The most 
brilliant page in the history of Washington is that which records 
his almost superhuman efforts to force the States to accept the 
work of the convention — efforts that began with the unanimous 
ratification of loyal little Delaware on December 7, 1787, and 
closed with the sullen acceptance of disloyal little Rhode Island, 
coerced by the fear of isolation, on May 29, 1790. The intellectual 
side of the movement finds its source in a man of contemplation, 
who worked behind a curtain which, until now, has almost con- 
cealed him from the view of the world. 

The material and political side of the movement finds its driving 
force in the Titanic form of a man of action, who without apparent 
effort, impressed all mankind from the outset with the grandeur of 
his achievements. Such is the relation in which Pelatiah Webster 
stands to Washington. 

And yet Washington and Webster gave to their country only a 
marble Galatea which the hand of another genius had to quicken 
into life. The success of the American Constitution has resulted 
from its capacity to adapt itself rapidly to the changes that have 
followed each other like the pictures in a panorama during the very 
short period in which the 13 scattered communities that fringed 
our Atlantic seaboard toward the close of the eighteenth century 
have grown into an empire. In expanding with that expansion, 
in adapting itself to the changed relations resulting therefrom, the 



42 Authorship of the Constitution of the United States. 

American Constitution has developed an elasticity, a growing 
power entirely beyond the cumberous process of amendment its 
terms provide. When the thirteenth, fourteenth, and fifteenth 
amendments, involving a single subject matter, are considered, as 
they should be, as a single transaction, the fact remains that the 
Constitution of the United States has been amended in a formal 
way only once since 1804, a period of 108 years. And yet during 
all that time it has been passing rapidly, despite its rigid and dog- 
matic form, through a marvelous process of unparalleled develop- 
ment, chiefly through the subtle agency of judge-made law ever 
flowing from a generous fountain — the Supreme Court of the United 
States. That fountain was unsealed by John Marshall, who, on 
February 4, 1801, took his place for the first time a Chief Justice, 
and as such sat in the midst of six associates for 34 years. Down 
to that time the judicial power, destined to become the main- 
spring of the new system, had proved a hopeless failure. During 
the first 1 1 years of its existence the latent powers of the Supreme 
Court were in eclipse. At the end of that time it was that Jay, 
on January 2, 1801, after his reappointment as Chief Justice, wrote 
to President Adams: 

I left the bench perfectly convinced that under a system so 
defective it would not obtain the energy, weight, and dignity which 
was essential to its affording due support to the National Govern- 
ment nor acquire the public confidence and respect which, as a last 
resort of the justice of the Nation, it should possess. Hence I am 
induced to doubt both the propriety and expediency of my return- 
ing to the bench under the present system. (Pellew's Life of Jay, 
P- 339-) 

That despairing cry with which Jay abandoned the headship 
of our Federal judicial system upon the assumption that it was 
impotent was a bugle call to Marshall, who became at once not 
only the dominating mind of the court but its mouthpiece in a 
sense in which no Chief Justice has ever been before or since. At 



Authorship of the Constitution of the United States. 43 

the moment of his accession the time was ripe for the advent of a 
jurist and statesman clear visioned enough to sweep the entire 
horizon of Federal power and bold enough to press each element 
of it to its logical conclusion. The ultimate success of his life 
work was assured by the manner in which he solved the problem 
of problems that awaited him. In Marbury v. Madison (1803) 
he announced for the first time that the Supreme Court possessed 
the right, as well as the power, to declare null and void an act of 
Congress in violation of the Constitution; in Fletcher v. Peck 
(18 10) he declared that it likewise possessed the power to put 
the stamp of nullity upon any State law that conflicted with the 
Constitution. The invincible logic employed in both demonstra- 
tions rested, necessarily, on the admission that the august right 
in question was a mere deduction from the general nature of a 
system of government whose constitution did not undertake to 
grant it in express terms. When the time came for a judgment 
to be pronounced in Cohens v. Virginia (1821), involving the 
supremacy of Federal law over State law, Marshall, in defining 
the new and growing sense of nationality, said: 

They maintain that the Constitution of the United States has 
provided no tribunal for the final construction of itself or of the 
laws or treaties of the Nation, but that this power may be exercised 
in the last resort by the courts of every State in the Union. 

In putting such theories to flight, he said: 

That the United States form, for many and for most important 
purposes, a single Nation has not yet been denied. In war we are 
one people. In making peace we are one people. In all com- 
mercial relations we are one and the same people. In many other 
respects the American people are one. And the Government which 
is alone capable of controlling and managing their interests in all 
these respects is the Government of the Union. It is their Gov- 
ernment, and in that character they have no other. America has 
chosen to be, in many respects and to many purposes, a Nation. 



44 Authorship of the Constitution of the United States. 

In that great judgment we hear not only of the complete 
supremacy of Federal law, but of the "American people" as the 
"Nation." In McCulloch v. Maryland (4 Wheat., 316) we hear 
of "the American Constitution." Of the complete supremacy of 
Federal law we have heard long before in the prophetic words of 
the great architect, who foresaw everything, provided for every- 
thing. Pelatiah Webster, in defining the supremacy of Federal 
law, made John Marshall's career possible. 

Since the Constitution was adopted it has been construed by 
the Supreme Court in about 1,400 cases, which, if printed sepa- 
rately in the official form, would fill about 15 volumes of the 
reports. Of that great mass of judge-made law, which deter- 
mines what the Constitution really is, Marshall was the founder. 
Pelatiah Webster was potent in raising the framework of the new 
building; John Marshall was potent in bracing it and giving it 
its final form. All have been honored, all have been rewarded, 
except the great architect who made everything possible. While 
the priceless legacy bequeathed by the immortal document of 
February 16, 1783, has become the heritage of swelling millions, 
an humble and neglected grave at Philadelphia has been the only 
recompense so far received by its author. Every drummer boy, 
every foreigner, who rendered conspicuous service to the patriot 
cause during the Revolutionary era has been honored by a monu- 
ment — only the architect of our Federal Constitution has been 

forgotten. 

Hannis Taylor. 



A 

DISSERTATION 



ON THE 



POLITICAL UNION 



CONSTITUTION 



THIRTEEN UNITED STATES I 



NORTH AMERICA, 

which is necessary to their Preservation and Happi- 
ness ; humbly offered to the Public 



By a Citizen of Philadelphia 



PHILADELPHIA 

PRINTED AND SOLD BY T. BRADFORD, IN FRONT STREET, 

THREE DOORS BELOW THE COFFEE HOUSE, 

MDCCLXXXm « 



1 Title-page as originally printed. 

45 



THE EPOCH-MAKING TRACT OF PELATIAH WEBSTER, OF FEBRU- 
ARY 16, 1783, IN WHICH IS EMBODIED THE FIRST DRAFT OF THE 
EXISTING CONSTITUTION OF THE UNITED STATES. 

I. The supreme authority of any State must have power enough 
to effect the ends of its appointment, otherwise these ends cannot 
be answered, and effectually secured; at best they are precarious. 
But at the same time, 

II. The supreme authority ought to be so limited and checked, 
if possible, as to prevent the abuse of power, or the exercise of 
powers that are not necessary to the ends of its appointment, but 
hurtful and oppressive to the subject; but to limit a supreme 
authority so far as to diminish its dignity, or lessen its power of 
doing good, would be to destroy or at least to corrupt it, and render 
it ineffectual to its ends. 

III. A number of sovereign States uniting into one Common- 
wealth, and appointing a supreme power to manage the affairs of 
the Union, do necessarily and unavoidably part with and transfer 
over to such supreme power, so much of their own sovereignty as is 
necessary to render the ends of the union effectual, otherwise their 
confederation will be an union without bands of union, like a cask 
without hoops, that may and probably will fall to pieces, as soon as 
it is put to any exercise which requires strength. 

In like manner, every member of civil society parts with many of 
his natural rights, that he may enjoy the rest in greater security 
under the protection of society. 

The Union of the Thirteen States of America is of mighty conse- 
quence to the security, sovereignty, and even liberty of each of 
them, and of all the individuals who compose them; united under 
a natural, well adjusted, and effectual Constitution, they are a 
strong, rich, growing power, with great resources and means of 
defence, which no foreign power will easily attempt to invade or 
insult; they may easily command respect. 

As their exports are mostly either raw materials or provisions; 
and their imports mostly finished goods, their trade becomes a 

47 



48 Authorship of the Constitution of the United States. 

capital object with every manufacturing nation of Europe, and all 
the southern colonies of America; their friendship and trade will 
of course be courted, and each power in amity with them will con- 
tribute to their security. 

Their union is of great moment in another respect : they thereby 
form a superintending power among themselves, that can moder- 
ate and terminate disputes that may arise between different States, 
restrain intestine violence, and prevent any recourse to the dreadful 
decision of the sword. 

I do not mean here to go into a detail of all the advantages of 
our union; they offer themselves on every view, and are important 
enough to engage every honest, prudent mind, to secure and 
establish that union by every possible method, that we may enjoy 
the full benefit of it, and be rendered happy and safe under the 
protection it affords. 

This union, however important, cannot be supported without 
a Constitution founded on principles of natural truth, fitness, and 
utility. If there is one article wrong in such Constitution, it will 
discover itself in practice, by its baleful operation, and destroy 
or at least injure the union. 

Many nations have been ruined by the errors of their political 
constitution. Such errors first introduce wrongs and injuries, 
which soon breed discontents, which gradually work up into mortal 
hatred and resentments; hence inveterate parties are formed, 
which of course make the whole community a house divided against 
itself, which soon falls either a prey to some enemies without, who 
watch to devour them, or else crumble into their original con- 
stituent parts, and lose all respectability, strength and security. 

It is as physically impossible to secure to civil society, good 
cement of union, duration, and security without a Constitution 
founded on principles of natural fitness and right, as to raise tim- 
bers into a strong, compact building, which have not been framed 
upon true geometric principles; for if you cut one beam a foot too 
long or too short, not all the authority and all the force of all the 
carpenters can ever get it into its place, and make it fit with 
proper symmetry there. 

As the fate then of all governments depends much upon their 
political constitutions, they become an object of mighty moment 



Authorship of the Constitution of the United States. 49 

to the happiness and well-being of society; and as the framing of 
such a Constitution requires great knowledge of the rights of men 
and societies, as well as of the interests, circumstances, and even 
prej udices of the several parts of the community or commonwealth, 
for which it is intended; it becomes a very complex subject, and 
of course requires great steadiness and comprehension of thought, 
as well as great knowledge of men and things, to do it properly. I 
shall, however, attempt it with my best abilities, and hope from the 
candor of the public to escape censure, if I cannot merit praise. 

I begin with my first and great principle, viz.: That the Con- 
stitution must vest powers in every department sufficient to secure 
and make effectual the ends of it. The supreme authority must 
have the power of making war and peace — of appointing armies 
and navies — of appointing officers both civil and military — of 
making contracts — of emitting, coining, and borrowing money — 
of regulating trade — of making treaties with foreign powers — of 
establishing post-offices — and in short of doing everything which 
the well-being of the Commonwealth may require, and which is 
not compatible to any particular State, all of which require money, 
and cannot possibly be made effectual without it. 

They must therefore of necessity be vested with power of taxa- 
tion. I know this is a most important and weighty truth, a dread- 
ful engine of oppression, tyranny, and injury, when ill used; yet, 
from the necessity of the case it must be admitted. 

For to give a supreme authority a power of making contracts, 
without any power of payment — of appointing officers civil and 
military, without money to pay them — a power to build ships, 
without any money to do it with— a power of emitting money, 
without any power to redeem it — or of borrowing money, without 
power to make payment, etc., etc. — such solecisms in government 
are so nugatory and absurd that I really think to offer further 
argument on the subject would be to insult the understanding of 
my readers. 

To make all these payments dependent on the votes of thirteen 
popular assemblies, who will undertake to judge of the propriety 
of every contract and every occasion of money, and grant or 
withhold supplies, according to their opinion, whilst at the same 
time the operations of the whole may be stopped by the vote of a 



50 Authorship of the Constitution of the United States. 

single one of them, is absurd; for this renders all supplies so pre- 
carious and the public credit so extremely uncertain, as must in its 
nature render all efforts in war, and all regular administration in 
peace, utterly impracticable, as well as most pointedly ridiculous. 
Is there a man to be found who would lend money, or render per- 
sonal services, or make contracts on such precarious security ? Of 
this we have a proof of fact, the strongest of all proofs, a fatal 
experience, the surest tho' severest of all demonstration, which 
renders all other proof or argument on this subject quite unneces- 
sary. 

The present broken state of our finances — public debts and 
bankruptcies — enormous and ridiculous depreciation of public 
securities — with the total annihilation of our public credit — 
prove beyond all contradiction the vanity of all recourse to the 
particular Assemblies of the States. The recent instance of the 
duty of 5 per cent on imported goods, struck dead, and the bank- 
ruptcies which ensued on the single vote of Rhode Island, affords 
another proof of what is certain may be done again in like circum- 
stances. 

I have another reason why a power of taxation or of raising 
money, ought to be vested in the supreme authority of our com- 
monwealth, viz. : the monies necessary for the public ought to be 
raised by a duty imposed on imported goods, not a bare 5 per cent 
or any other per cent on all imported goods indiscriminately, but 
a duty much heavier on all articles of luxury or mere ornament, 
and which are consumed principally by the rich or prodigal part 
of the community, such as silks of all sorts, muslins, cambricks, 
lawns, superfine cloths, spirits, wines, etc., etc. 

Such an impost would ease the husbandman, the mechanic, and 
the poor; would have all the practical effects of a sumptuary law; 
would mend the economy, and increase the industry of the com- 
munity; would be collected without the shocking circumstances 
of collectors and their warrants; and make the quantity of tax 
paid always depend on the choice of the person who pays it. 

This tax can be laid by the supreme authority much more con- 
veniently than by the particular Assemblies, and would in no case 
be subject to their appeals or modifications and, of course, the pub- 
lic credit would never be dependent on, or liable to bankruptcy by 



Authorship of the Constitution of the United States. 5 1 

the humors of any particular Assembly. In an Essay on Finance, 
which I design soon to offer to the public, this subject will be treated 
more fully. (See my Sixth Essav on Free Trade and Finance, 
p. 229.) 

The delegates which are to form that august body, which are to 
hold and exercise the supreme authority, ought to be appointed 
by the States in any manner they please; in which they should not 
be limited by any restrictions; their own dignity and the weight 
they will hold in the great public councils, will always depend on the 
abilities of the persons they appoint to represent them there; and 
if they are wise enough to choose men of sufficient abilities and 
respectable characters, men of sound sense, extensive knowledge, 
gravity and integrity, they will reap the honor and advantage of 
such wisdom. 

But if they are fools enough to appoint men of trifling or vile fc 
characters, of mean abilities, faulty morals, or despicable igno- 
rance, they must reap the fruits of such folly, and content them- 
selves to have no weight, dignity, or esteem in the public councils; 
and what is more to be lamented by the Commonwealth, to do no 
good there. 

I have no objection to the States electing and recalling their 
delegates as often as they please, but think it hard and very injuri- 
ous both to them and the Commonwealth that they should be 
obliged to discontinue them after three years' service, if they find 
them on that trial to be men of sufficient integrity and abilities; 
a man of that experience is certainly much more qualified to serve 
in the place than a new member of equal good character can be; 
experience makes perfect in every kind of business — old, experi- 
enced statesmen of tried and approved integrity and abilities are 
a great blessing to a State — they acquire great authority and 
esteem as well as wisdom, and very much contribute to keep the 
system of government in good and salutary order; and this fur- 
nishes the strongest reason why they should be continued in the 
service, on Plato's great maxim that "the man best qualified to 
serve, ought to be appointed." 

I am sorry to see a contrary maxim adopted in our American 
counsels; to make the highest reason that can be given for con- 
tinuing a man in the public administration, assigned as a consti- 



52 Authorship of the Constitution of the United States. 

tutional and absolute reason for turning him out, seems to me to 
be a solecism of a piece with many other reforms, by which we set 
out to surprise the world with our wisdom. 

If we should adopt this maxim in the common affairs of life, it 
would be found inconvenient, e. g., if we should make it a part of 
our Constitution, that a man who has served a three years' appren- 
ticeship to the trade of a tailor or shoemaker should be obliged to 
discontinue that business for the three successive years, I am of 
opinion the country would soon be cleared of good shoemakers and 
tailors. Men are no more born statesmen than shoemakers or 
tailors. Experience is equally necessary to perfection in both. 

It seems to me that a man's inducement to qualify himself for a 
public employment and make himself master of it must be much 
discouraged by this consideration, that let him take whatever pains 
to qualify himself in the best manner he must be shortly turned 
out, and, of course, it would be of more consequence to him to turn 
his attention to some other business which he might adopt when 
his present appointment should expire; and by this means the 
Commonwealth is in danger of losing the zeal, industry and shining 
abilities as well as services of their most accomplished and valuable 
men. 

I hear that the State of Georgia has improved on this blessed 
principle and limited the continuance of their governors to one 
year; the consequence is, they have already the ghosts of departed 
governors stalking about in every part of their State and growing 
more plenty every year; and as the price of everything is reduced 
by its plenty I can suppose governors will soon be very low there. 

This doctrine of rotation was first proposed by some sprightly 
geniuses of brilliant politics with this cogent reason: that by intro- 
ducing a rotation in the public offices we should have a great 
number of men trained up to public service, but it appears to me 
that it will be more likely to produce many jacks at all trades, but 
good at none. 

I think that frequent elections are a sufficient security against the 
continuance of men in public office whose conduct is not approved, 
and there can be no reason for excluding those whose conduct is 
approved, and who are allowed to be better qualified than any men 
who can be found to supply their places. 



Authorship of the Constitution of the United States. 53 

Another great object of government is the apportionment of 
burdens and benefits; for if a greater quota of burdens or a less 
quota of benefits than is just and right be allotted to any State, 
this ill apportionment will be an everlasting source of uneasiness 
and discontent. In the first case, the overburdened State will com- 
plain ; in the last case, all the States whose quota of benefit is under- 
rated will be uneasy; and this is a case of such delicacy that it 
cannot be safely trusted to the arbitrary opinion or judgment of 
any body of men however august. 

Some natural principles of confessed equity, and which can be 
reduced to a certainty, ought, if possible, to be found and adopted ; 
for it is of the highest moment to the Commonwealth to obviate 
and, if possible, wholly to take away such a fruitful and common 
source of infinite disputes as that of apportionment of quotas has 
ever proved in all States of the earth. 

The value of lands may be a good rule, but the ascertainment of 
that value is impracticable. No assessment can be made which 
will not be liable to exception and debate. To adopt a good rule in 
anything which is impracticable is absurd, for it is physically impos- 
sible that anything should be good for practice which cannot be 
practised at all; but if the value of lands was capable of certain 
assessment, yet to adopt that value as a rule of apportionment of 
quotas and at the same time to except from valuation large tracts 
of sundry States of immense value, which have all been defended 
by the joint arms of the whole Empire, and for the defence of which 
no additional quota of supply is to be demanded of those States to 
whom such lands are secured by such joint efforts of the States, is 
in its nature unreasonable, and will open a door for great complaint. 

It is plain without argument that such States ought either to 
make grants to the Commonwealth of such tracts of defended terri- 
tory or sell as much of them as will pay their proper quota of 
defence, and pay such sums into the public treasury. And this 
ought to be done, let what rule of quota soever be adopted with 
respect to the cultivated part of the United States, for no propo- 
sition of natural right and justice can be plainer than this, that 
every part of valuable property which is defended, ought to con- 
tribute its quota of supply for that defence. 



54 Authorship of the Constitution of the United States. 

If then the value of cultivated lands is found to be an imprac- 
ticable rule of apportionment of quotas we have to seek for some 
other, equally just and less exceptionable. 

It appears to me that the number of living souls or human per- 
sons of whatever age, sex or condition will afford us a rule or 
measure of apportionment which will forever increase and decrease 
with the real wealth of the States, and will, of course, be a per- 
petual rule, not capable of corruption by any circumstances of 
future time, which is of vast consideration in forming a constitu- 
tion which is designed for perpetual duration, and which will in its 
nature be as just as to the inhabited parts of each State as that of 
the value of lands or any other that has or can be mentioned. 

Land takes its value not merely from the goodness of its soil, but 
from innumerable other relative advantages, among which the 
population of the country may be considered as principal; as lands 
in a full settled country will always (ceteris paribus) bring more 
than lands in thin settlements. On this principle, when the inhabi- 
tants of Russia, Poland, etc., sell real estate, they do not value 
them as we do by the number of acres, but by the number of 
people who live on them. 

Where any piece of land has many advantages many people will 
crowd there to obtain them, which will create many competitors 
for the purchase of it, which will, of course, raise the price. Where 
there are fewer advantages there will be fewer competitors and, of 
course, a less price; and these two things will forever be propor- 
tionate to each other, and, of course, the one will always be a sure 
index of the other. 

The only considerable objection I have ever heard to this is that 
the quality of inhabitants differs in the different States, and it is 
not reasonable that the black slaves in the Southern States should 
be estimated on a par with the white freemen in the Northern 
States. To discuss this question fairly, I think it will be just to 
estimate the neat value of the labor of both, and if it shall appear 
that the labor of the black person produces as much neat wealth to 
the Southern States as the labor of the white person does to the 
Northern State, I think it will follow plainly, that they are equally 
useful inhabitants in point of wealth, and therefore in the case 
before us should be estimated alike. 



Authorship of the Constitution of the United States. 55 

And if the amazing profits which the Southern planters boast of 
receiving from the labor of their slaves on their plantations are real, 
the Southern people have greatly the advantage in this kind of 
estimation, and as this objection comes principally from the 
southward, I should suppose that the gentlemen from that part 
would blush to urge it any farther. 

That the supreme authority should be vested with powers to 
terminate and finally decide controversies arising between differ- 
ent States, I take it, will be universally admitted, but I humbly 
apprehend that an appeal from the first instance of trial ought to 
be admitted in causes of great moment, on the same reasons that 
such appeals are admitted in all the States of Europe. It is well 
known to all men versed in courts that the first hearing of a cause 
rather gives an opening to that evidence and reason which ought 
to decide it, than such a full examination and thorough discussion, V 
as should always precede a final judgment in causes of national 
consequence. A detail of reasons might be added, which I deem 
it unnecessary to enlarge on here. 

The supreme authority ought to have a power of peace and war, 
and forming treaties and alliances with all foreign powers; which 
implies a necessity of their also having sufficient powers to enforce 
the obedience of all subjects of the United States to such treaties 
and alliances; with full powers to unite the force of the States; 
and direct its operations in war; and to punish all transgressors in 
all these respects ; otherwise, by the imprudence of a few the whole 
Commonwealth may be embroiled with foreign powers, and the 
operations of war may be rendered useless or fail much of their 
due effect. 

All these I conceive will be easily granted, especially the latter, 
as the power of Congress to appoint and direct the army and navy 
in war, with all departments thereto belonging, and punishing 
delinquents in them all is already admitted into practice in the 
course of the present unhappy war in which we have been long 
engaged. 

II. But now the great and most difficult part of this weighty 
subject remains to be considered, viz., how these supreme powers 
are to be constituted in such manner that they may be able to 
exercise with full force and effect the vast authorities committed 



56 Authorship of the Constitution of the United States. 

to them for the good and well-being of the United States, and yet 
be so checked and restrained from exercising them to the injury 
and ruin of the States that we may with safety trust them with a 
commission of such vast magnitude — and may Almighty Wisdom 
direct my pen in this arduous discussion. 

1. The men who compose this important council must be dele- 
gated from all the States, and, of course, the hope of approbation 
and continuance of honors will naturally stimulate them to act 
rightly and to please. The dread of censure and disgrace will 
naturally operate as a check to restrain them from improper 
behavior; but, however natural and forcible these motives may be, 
we find by sad experience they are not always strong enough to 
produce the effects we expect and wish from them. 

It is to be wished that none might be appointed that were not 
fit and adequate to this weighty business; but a little knowledge 
of human nature and a little acquaintance with the political his- 
tory of mankind will soon teach us that this is not to be expected. 

The representatives appointed by popular elections are com- 
monly not only the legal, but real, substantial representatives of 
their electors, i. e., there will commonly be about the same pro- 
portion of grave, sound, well-qualified men, trifling, desultory 
men — wild or knavish schemers — and dull, ignorant fools in the 
delegated assembly as in the body of electors. 

I know of no way to help this. Such delegates must be ad- 
mitted as the States are pleased to send, and all that can be done 
is when they get together to make the best of them. 

We will suppose then they are all met in Congress, clothed with 
that vast authority which is necessary to the well-being and even 
existence of the union, that they should be vested with. How shall 
we empower them to do all necessary and effectual good, and re- 
strain them from doing hurt? To do this properly I think we 
must recur to those natural motives of action, those feelings and 
apprehensions which usually occur to the mind at the very time 
of action ; for distant consequences however weighty are often too 
much disregarded. 

Truth loves light and is vindicated by it. Wrong shrouds itself 
in darkness and is supported by delusion. An honest well- 
qualified man loves light, can bear close examination and critical 



Authorship of the Constitution of the United States. 57 

inquiry and is best pleased when he is most thoroughly under- 
stood. A man of corrupt design, or a fool of no design, hates close 
examination and critical inquiry. The knavery of the one and 
the ignorance of the other are discovered by it and they both 
usually grow uneasy before the investigation is half done. I do 
not believe that there is a more natural truth in the world than 
that divine one of our Savior, "he that doeth truth, cometh to' 
the light." I would therefore recommend that mode of deliber- 
ation which will naturally bring on the most thorough and critical 
discussion of the subject previous to passing any act; and for that 
purpose humbly propose, 

2. That the Congress shall consist of two chambers, an upper 
and a lower house, or senate and commons, with the concurrence 
of both necessary to every act; and that every State send one or 
more delegates to each house. This will subject every act to two 
discussions before two distinct chambers of men equally qualified 
for the debate, equally masters of the subject, and of equal author- 
ity in the decision. 

These two houses will be governed by the same natural motives 
and interests, viz., the good of the Commonwealth, and the appro- 
bation of the people. Whilst at the same time the emulation 
naturally arising between them will induce a very critical and 
sharp-sighted inspection into the motives of each other. Their 
different opinions will bring on conferences between the two houses 
in which the whole subject will be exhausted in arguments pro 
and con, and shame will be the portion of obstinate, convicted 
error. 

Under these circumstances a man of ignorance or evil design 
will be afraid to impose on the credulity, inattention or confidence 
of his house by introducing any corrupt or indigested proposition 
which he knows he must be called on to defend against the severe 
scrutiny and poignant objections of the other house. I do not 
believe the many hurtful and foolish legislative acts which first or 
last have injured all the States on earth have originated so much 
in corruption as indolence, ignorance, and a want of a full com- 
prehension of the subject which a full, prying and emulous dis- 
cussion would tend in a great measure to remove: this naturally 
rouses the lazy and idle who hate the pain of close thinking; ani- 



58 Authorship of the Constitution of the United States. 

mates the ambitious to excel in policy and argument ; and excites 
the whole to support the dignity of their house and vindicate their 
own propositions. 

I am not of opinion that bodies of elective men, which usually 
compose Parliaments, Diets, Assemblies, Congresses, etc., are 
commonly dishonest ; but I believe it rarely Jiappens that there 
are not designing men among them ; and I think it would be much 
more difficult for them to unite their partisans in two houses, 
and corrupt or deceive them both, than to carry on their designs 
where there is but one unalarmed, unapprehensive house to be 
managed; and as there is no hope of making these bad men good, 
the best policy is to embarrass them and make their work as 
difficult as possible. 

In these assemblies are frequently to be found sanguine men, 
upright enough indeed, but of strong, wild projection, whose brains 
are always teeming with Utopian, chimerical plans, and political 
whims very destructive to society. I hardly know a greater evil 
than to have the supreme council of a nation played off on such 
men's wires; such baseless visions at best end in darkness, and 
the dance, though easy and merry enough at first, rarely fails to 
plunge the credulous, simple followers into sloughs and bogs at last. 

Nothing can tend more effectually to obviate these evils, and to 
mortify and cure such maggoty brains than to see the absurdity of 
their projects exposed by the several arguments and keen satire 
which a full, emulous and spirited discussion of the subject will 
naturally produce. We have had enough of these geniuses in the 
short course of our politics both in our national and provincial 
councils, and have felt enough of their evil effects to induce us 
to wish for any good method to keep ourselves clear of them in 
future. 

The consultations and decisions of national councils are so very 
important that the fate of millions depends on them, therefore no 
man ought to speak in such assemblies without considering that 
the fate of millions hangs on his tongue, and of course a man can 
have no right in such august councils to utter indigested sentiments, 
or indulge himself in sudden, unexamined flights of thought; his 
most tried and improved abilities are due to the State who have 
trusted him with their most important interests. 



Authorship of the Constitution of the United States. 59 

A man must therefore be most inexcusable who is either absent 
during such debates, or sleeps, or whispers, or catches flies during 
the argument, and just rouses when the vote is called to give his 
yea or nay to the weal or woe of a nation. Therefore it is mani- 
festly proper that every natural motive that can operate on his 
understanding or his passions to engage his attention and utmost 
efforts should be put in practice, and that his present feelings 
should be raised by every motive of honor and shame to stimulate 
him to every practicable degree of diligence and exertion to be as 
far as possible useful in the great discussion. 

I appeal to the feelings of every reader, if he would not (were he 
in either house) be much more strongly and naturally induced to 
exert his utmost abilities and attention to any question which was 
to pass through the ordeal of a spirited discussion of another 
house, than he would do if the absolute decision depended on his 
own house without any further inquiry or challenge on the subject. 

As Congress will ever be composed of men delegated by the 
several States, it may well be supposed that they have the con- 
fidence of their several States and understand well the policy and 
present condition of them. It may also be supposed that they 
come with strong local attachments and habits of thinking limited 
to the interests of their particular States. It may therefore be 
supposed that they will need much information in order to their 
gaining that enlargement of ideas and great comprehension of 
thought which will be necessary to enable them to think properly 
on that large scale which takes into view the interests of all the 
States. 

The greatest care and wisdom is therefore requisite to give them 
the best and surest information, and of that kind that may be the 
most safely relied on to prevent their being deluded or prejudiced 
by partial representations made by interested men who have 
particular views. 

This information may perhaps be best made by the great 
ministers of state, who ought to be men of the greatest abilities 
and integrity. Their business is confined to their several de- 
partments, and their attention engaged strongly and constantly 
to all the several parts of the same, the whole arrangement, 
method and order of which are formed, superintended and managed 



60 Authorship of the Constitution of the United States. 

in their offices, and all information relative to their department 
centre there. 

These ministers will of course have the best information and 
most perfect knowledge of the state of the nation, as far as it 
relates to their several departments, and will, of course, be able 
to give the best information to Congress in what manner any bill 
proposed will affect the public interest in their several departments 
which will nearly comprehend the whole. 

The financiers manage the whole subject of revenues and ex- 
penditures, the Secretary of State takes knowledge of the general 
policy and internal government, the Minister of War presides in 
the whole business of war and defence, and the Minister of Foreign 
Affairs regards the whole state of the nation as it stands related 
to or connected with all foreign powers. 

I mention a Secretary of State because all other nations have 
one, and I suppose we shall need one as much as they, and the 
multiplicity of affairs which naturally fall into his office will grow 
so fast that I imagine we shall soon be under the necessity of 
appointing one. 

To these I would add Judges of Law, and Chancery; but I fear 
they will not be very soon appointed — the one supposes the exist- 
ence of law, the other of equity — and when we shall be altogether 
convinced of the absolute necessity of the real and effectual 
existence of both of these we shall probably appoint proper heads 
to preside in those departments. I would therefore propose, 

3. That when any bill shall pass the second reading in the house 
in which it originates, and before it shall be finally enacted, copies 
of it shall be sent to each of the said ministers of state, in being 
at the time, who shall give said house in writing the fullest infor- 
mation in their power, and their most explicit sentiments of the 
operation of the said bill on the public interest, as far as relates 
to their respective departments, which shall be received and read 
in said house and entered on their minutes before they finally pass 
the bill ; and when they send the bill for concurrence to the other 
house they shall send therewith the said informations of the said 
ministers of state, which shall likewise be read in that house 
before their concurrence is finally passed. 



Authorship of the Constitution of the United States. 61 

I do not mean to give these great ministers of state a negative 
on Congress, but I mean to oblige Congress to receive their advices 
before they pass their bills, and that every act shall be void that 
is not passed with these forms; and I further propose that either 
house of Congress may, if they please, admit the said ministers 
to be present and assist in the debates of the house, but without 
any right of vote in the decision. 

It appears to me that if every act shall pass so many different 
corps of discussion before it is completed, where each of them 
stake their characters on the advice or vote they give, there will 
be all the light thrown on the case which the nature and circum- 
stances of it can admit, and any corrupt man will find it extremely 
difficult to foist in any erroneous clause whatever; and every 
ignorant or lazy man will find the strongest inducements to make 
himself master of the subject that he may appear with some tol- 
erable degree of character in it; and the whole will find them- 
selves in a manner compelled, diligently and sincerely, to seek for 
the real state of the facts and the natural fitness and truths arising 
from them, i. e., the whole natural principles on which the sub- 
ject depends, and which alone can endure every test, to the end 
that they may have not only the inward satisfaction of acting 
properly and usefully for the States, but also the credit and char- 
acter which is or ought ever to be annexed to such a conduct. 

This will give the great laws of Congress the highest probabil- 
ity, presumption and means of right, fitness and truth that any 
laws whatever can have at their first enaction, and will of course 
afford the highest reason for the confidence and acquiescence of 
the States and all their subjects in them, and being grounded 
in truth and natural fitness, their operations will be easy, salutary 
and satisfactory. 

If experience shall discover error in any law (for practice will 
certainly discover such errors, if there be any) , the legislature will 
always be able to correct them by such repeals, amendments, or 
new laws as shall be found necessary, but as it is much easier to 
prevent mischiefs than to remedy them, all possible caution, 
prudence and attention should be used to make the laws right at 
first. 



62 Authorship of the Constitution of the United States. 

4. There is another body of men among us whose business of 
life, and whose full and extensive intelligence, foreign and domes- 
tic, naturally make them more perfectly acquainted with the 
sources of our wealth, and whose particular interests are more 
intimately and necessarily connected with the general prosperity 
of the country than any other order of men in the States. I mean 
the merchants; and I could wish that Congress might have the 
benefit of that extensive and important information which this 
body of men are very capable of laying before them. 

Trade is of such essential importance to our interests and so 
intimately connected with all our staples, great and small, that 
no sources of our wealth can flourish and operate to the general 
benefit of the community without it. Our husbandry, the great 
staple of our country, can never exceed our home consumption 
without this : it is plain at first sight that the farmer will not toil 
and sweat through the year to raise great plenty of the produce 
of the soil if there is no market for his produce when he has it 
ready for sale, i. e., if there are no merchants to buy it. 

In like manner the manufacturer will not lay out his business 
on any large scale if there is no merchant to buy his fabrics when 
he has finished them; a vent is of the most essential importance 
to every manufacturing country. The merchants, therefore, 
become the natural negotiators of the wealth of the country who 
take off the abundance and supply the wants of the inhabitants; 
and as this negotiation is the business of their lives and the source 
of their own wealth they, of course, become better acquainted 
with both our abundance and wants, and are more interested in 
finding and improving the best vent for the one, and supply of 
the other, than any other men among us, and they have a natural 
interest in making both the purchase and supply as convenient to 
their customers as possible, that they may secure their custom 
and thereby increase their own business. 

It follows, then, that the merchants are not only qualified to 
give the fullest and most important information to our supreme 
legislature concerning the state of our trade, the abundance and 
wants, the wealth and poverty of our people, i. e., their most 
important interests, but are also the most likely to do it fairly 
and truly, and to forward with their influence every measure 



Authorship of the Constitution of the United States. 63 

which will operate to the convenience and benefits of our com- 
merce, and oppose with their whole weight and superior knowledge 
of the subject any wild schemes which an ignorant or arbitrary 
legislature may attempt to introduce, to the hurt and embar- 
rassment of our intercourse both with one another and with 
foreigners. 

The States of Venice and Holland have ever been governed by 
merchants, or at least their policy has ever been under the great 
influence of that sort of men. No States have been better served, 
as appears by their great success, the ease and happiness of their 
citizens, as well as the strength and riches of their Commonwealths. 
The one is the oldest, and the other the richest State in the 
world of equal number of people. The one has maintained sun- 
dry wars with the Grand Turk, the other has withstood the power 
of Spain and France; and the capitals of both have long been the 
principal marts of the several parts of Europe in which they are 
situated. And the banks of both are the best supported and in 
the best credit of any banks in Europe, though their countries or 
territories are very small and their inhabitants but a handful 
when compared with the great States in their neighborhood. 

Merchants must from the nature of their business certainly under- 
stand the interests and resources of their country, the best of any 
men in it; and I know not of any one reason why they should be 
deemed less upright or patriotic than any other rank of citizen 
whatever. 

I therefore humbly propose, if the merchants in the several 
States are disposed to send delegates from their body to meet and 
attend the sitting of Congress, that they shall be permitted to form 
a chamber of commerce, and their advice to Congress be demanded 
and admitted concerning all bills before Congress as far as the same 
may affect the trade of the States. 

I have no idea that the continent is made for Congress. I take 
them to be no more than the upper servants of the great political 
body, who are to find out things by study and inquiry as other 
people do, and therefore I think it necessary to place them under 
the best possible advantages for information, and to require them 
to improve all those advantages, to qualify themselves in the best 
manner possible for the wise and useful discharge of the vast trust 



64 Authorship of the Constitution of the United States. 

and mighty authority reposed in them; and as I conceive the 
advice of the merchants to be one of the greatest sources of mer- 
cantile information which is anywhere placed within their reach 
it ought by no means to be neglected, but so husbanded and im- 
proved that the greatest possible advantages may be derived 
from it. 

Besides this I have another reason why the merchants ought to 
be consulted. I take it to be very plain that the husbandry and 
manufactures of the country must be ruined if the present rate of 
taxes is continued on them much longer, and, of course, a very 
great part of our revenue must arise from imposts on merchandise 
which will fall directly within the merchants' sphere of business, 
and of course, their concurrence and advice will be of the utmost 
consequence, not only to direct the properest mode of levying 
those duties, but also to get them carried into quiet and peaceable 
execution. 

No men are more conversant with the citizens, or more inti- 
mately connected with their interests than the merchants, and 
therefore their weight and influence will have a mighty effect on 
the minds of the people. I do not recollect an instance in which 
the Court of London ever rejected the remonstrances and advices 
of the merchants and did not suffer severely for their pride. We 
have some striking instances of this in the disregarded advices and 
remonstrances of very many English merchants against the 
American war, and their fears and apprehensions we see verified 
almost like prophecies by the event. 

I know not why I should continue this argument any longer, or 
indeed why I should have urged it so long, inasmuch as I cannot 
conceive that Congress or anybody else will deem it below the 
dignity of the supreme power to consult so important an order of 
men in matters of the first consequence which fall immediately 
under their notice, and in which their experience and, of course, 
their knowledge and advice are preferable to those of any other 
order of men. 

Besides the benefits which Congress may receive from this insti- 
tution, a chamber of commerce composed of members from all 
trading towns in the States, if properly instituted and conducted, 
will produce very many, I might almost say, innumerable advan- 



Authorship of the Constitution of the United States. 65 

tages of singular utility to all the States. It will give dignity, uni- 
formity and safety to our trade, establish the credit of the bank, 
secure the confidence of foreign merchants, prove in very many 
instances a fruitful source of improvement of our staples and 
mutual intercourse, correct many abuses, pacify discontents, 
unite us in our interests, and thereby cement the general union of 
the whole Commonwealth, will relieve Congress from the pain and 
trouble of deciding many intricate questions of trade which they 
do not understand by referring them over to this chamber, where 
they will be discussed by an order of men, the most competent to 
the business of any that can be found and most likely to give a 
decision that shall be just, useful and satisfactory. 

It may be objected to all this that the less complex and the more 
simple every constitution is the nearer it comes to perfection. 
This argument would be very good and afford a very forcible con- 
clusion if the government of men was like that of the Almighty, 
always founded on wisdom, knowledge and truth ; but in the pres- 
ent imperfect state of human nature, where the best of men know 
but in part and must recur to advice and information for the rest, 
it certainly becomes necessary to form a constitution on such prin- 
ciples as will secure that information and advice in the best and 
surest manner possible. 

It may be further objected that the forms herein proposed will 
embarrass the business of Congress and make it at best slow and 
dilatory. As far as this form will prevent the hurrying a bill 
through the house without due examination the objection itself 
becomes an advantage. At most these checks on the supreme 
authority can have no further effect than to delay or destroy a 
good bill, but cannot pass a bad one ; and I think it much better 
in the main to lose a good bill than to suffer a bad one to pass into 
a law. Besides it is not to be supposed that clear, plain cases will 
meet with embarrassment, and it is most safe that untried, doubt- 
ful, difficult matters should pass through the gravest and fullest 
discussion before the sanction of the law is given to them. 

But what is to be done if the two houses grow jealous and ill- 
natured, and after all their information and advice grow out of 
humor and insincere, and no concurrence can be obtained? I 
answer, sit still and do nothing until they get into a better humor. 



66 Authorship of the Constitution of the United States. 

I think this is much better than to pass laws in such a temper and 
spirit as the objection supposes. 

It is, however, an ill compliment to so many grave personages 
to suppose them capable of throwing aside their reason and giving 
themselves up like children to the control of their passion; or, if 
this should happen for a moment that it should continue any 
length of time, is hardly to be presumed of a body of men placed 
in such high stations of dignity and importance, with the eyes of 
all the world upon them. But if they should, after all, be capable 
of doing this, I think it madness to set them to making laws dur- 
ing such fits. It is best when they are in no condition to do good 
to keep them from doing hurt, and if they do not grow wiser in 
reasonable time I know of nothing better than to be ashamed of 
our old appointments, and make new ones. 

But what if the country is invaded, or some other exigency hap- 
pens so pressing that the safety of the State requires an immediate 
resolution? I answer, what would you do if such a case should 
happen where there was but one house, unchecked, but equally 
divided, so that a legal vote could not be obtained. The matter 
is certainly equally difficult and embarrassed in both cases. But 
in the case proposed I know of no better way than that which the 
Romans adopted on the like occasion, viz., that both houses meet 
in one chamber and choose a dictator who should have and exer- 
cise the whole power of both houses till such time as they should be 
able to concur in displacing him, and that the whole power of the 
two houses should be suspended in the mean time. 

5. I further propose that no grant of money whatever shall be 
made without an appropriation, and that rigid penalties (no mat- 
ter how great, in my opinion the halter would be mild enough) 
shall be inflicted on any person, however august his station, who 
should give order, or vote for the payment, or actually pay one 
shilling of such money to any other purpose than that of its appro- 
priation, and that no order whatever of any superior in office shall 
justify such payment, but every order shall express what funds it 
is drawn upon and what appropriation it is to be charged to, or 
the order shall not be paid. 

This kind of embezzlement is of so fatal a nature that no meas- 
ures or bounds are to be observed in curing it. When ministers 



Authorship of the Constitution of the United States. 67 

will set forth the most specious and necessary occasions for money, 
and induce the people to pay it in full tale, and when they have 
gotten possession of it, to neglect the great objects for which it was 
given, and pay it, sometimes squander it away, for different pur- 
poses, oftentimes for useless, yea, hurtful ones, yea often even to 
bribe and corrupt the very officers of government, to betray their 
trust and contaminate the State even in its public offices— to force 
people to buy their own destruction and pay for it with their hard 
labor, the very sweat of their brow, is a crime of so high a nature 
that I know not any gibbet too cruel for such offenders. 

6. I would further propose that the aforesaid great ministers of 
state shall compose a Council of State, to whose number Congress 
may add three others, viz., one from New England, one from the 
Middle States and one from the Southern States, one of which to 
be appointed President by Congress, to all of whom shall be com- V 
mitted the supreme executive authority of the States (all and 
singular of them ever accountable to Congress) who shall superin- 
tend all the executive departments and appoint all executive offi- 
cers, who shall ever be accountable to and removable for just cause 
by them or Congress, i. e., either of them. 

7. I propose further that the powers of Congress, and all the 
other departments acting under them, shall all be restricted to such 
matters only of general necessity and utility to all the States as 
cannot come within the jurisdiction of any particular State, or to 
which the authority of any particular State is not competent, so 
that each particular State shall enjoy all sovereignty and supreme 
authority to all intents and purposes, excepting only those high 
authorities and powers by them delegated to Congress for the pur- 
poses of the general union. 

There remains one very important article still to be discussed, 
viz., what methods the Constitution shall point out to enforce the 
acts and requisitions of Congress through the several States, and 
how the States which refuse or delay obedience to such acts and 
requisitions shall be treated. This, I know, is a particular of 
greatest delicacy, as well as of the utmost importance, and there- 
fore, I think, ought to be decidedly settled by the Constitution in 
our coolest hours, whilst no passions or prejudices exist which may 



68 Authorship of the Constitution of the United States. 

be excited by the great interests or strong circumstances of any 
particular case which may happen. 

I know that supreme authorities are liable to err as well as sub- 
ordinate ones. I know that courts may be in the wrong as well as 
the people; such is the imperfect state of human nature in all 
ranks and degrees of men. But we must take human nature as it 
is — it cannot be mended — and we are compelled both by wisdom 
and necessity to adopt such methods as promise the greatest attain- 
able good, though perhaps not the greatest possible, and such as 
are liable to the fewest inconveniences, though not altogether free 
of them. 

This is a question of such magnitude that I think it necessary 
to premise the great natural principles on which its decision ought 
to depend. In the present state of human nature all human life 
is a life of chances ; it is impossible to make any interest so certain, 
but there will be a chance against it, and we are in all cases obliged 
to adopt a chance against us in order to bring ourselves within 
the benefit of a greater chance in our favor; and that calculation 
of chances which is grounded on the great natural principles of 
truth and fitness is of all others the most likely to come out right. 

i. No laws of any State whatever, which do not carry in them 
a force which extends to their effectual and final execution, can 
afford a certain or sufficient security to the subject. This is too 
plain to need any proof. 

2. Laws or ordinances of any kind (especially of august bodies 
of high dignity and consequence) , which fail of execution, are much 
worse than none. They weaken the government, expose it to con- 
tempt, destroy the confidence of all men, natives and foreigners, 
in it, and expose both aggregate bodies and individuals who have 
placed confidence in it to many ruinous disappointments which 
they would have escaped had no law or ordinance been made; 
therefore, 

3. To appoint a Congress with powers to do all acts necessary 
for the support and uses of the union; and at the same time to 
leave all the States at liberty to obey them or not with impunity, is, 
in every view, the grossest absurdity, worse than a state of nature 
without any supreme authority at all, and at best a ridiculous 
effort of childish nonsense; and of course, 



Authorship of the Constitution of the United States. 69 

4. Every State in the Union is under the highest obligation to 
obey the supreme authority of the whole, and in the highest degree 
amenable to it, and subject to the highest censure for disobedience. 
Yet all this notwithstanding, I think the soul that sins shall die, 
i. e., the censure of the great supreme power ought to be so di- 
rected if possible as to light on those persons who have betrayed 
their country and exposed it to dissolution, by opposing and re- 
jecting that supreme authority which is the band of our union and 
from whence proceeds the principal strength and energy of our 
government. 

I therefore propose that every person whatever, whether in pub- 
lic or private character, who shall by public vote or overt act dis- 
obey the supreme authority, shall be amenable to Congress, shall 
be summoned and compelled to appear before Congress and, on 
due conviction, suffer such fine, imprisonment, or other punish- 1 
ment as the supreme authority shall judge requisite. 

It may be objected here that this will make a Member of Assem- 
bly accountable to Congress for his vote in Assembly. I answer, 
it does so in this only case, viz., when that vote is to disobey the 
supreme authority; no Member of Assembly can have right to 
give such a vote, and therefore ought to be punished for so doing. 
When the supreme authority is disobeyed the government must 
lose its energy and effect, and of course the Empire must be shaken 
to its very foundation. 

A government which is but half executed, or whose operations 
may all be stopped by a single vote, is the most dangerous of all 
institutions. See the present Poland and ancient Greece buried in 
ruins in consequence of this fatal error in their policy. A govern- 
ment which has not energy and effect can never afford protection or 
security to its subjects, i. e., must ever be ineffectual to its own 
ends. 

I cannot therefore admit that the great ends of our Union should 
lie at the mercy of a single State, or that the energy of our govern- 
ment should be checked by a single disobedience, or that such diso- 
bedience should ever be sheltered from censure and punishment; 
the consequence is too capital, too fatal to be admitted. Even 
though I know very well that a supreme authority with all its 
dignity and importance is subject to passions like other lesser 



70 Authorship of the Constitution of the United States. 

powers, that they may be and often are heated, violent, oppressive 
and very tyrannical, yet I know also that perfection is not to be 
hoped for in this life, and we must take all institutions with their 
natural defects or reject them altogether. I will guard against 
these abuses of power as far as possible, but I cannot give up all 
government or destroy its necessary energy for fear of these abuses. 

But to fence them out as far as possible, and to give the States 
as great a check on the supreme authority as can consist with its 
necessary energy and effect, 

I propose that any State may petition Congress to repeal any 
law or decision which they have made, and if more than half the 
States do this, the law or decision shall be repealed, let its nature 
or importance be however great, excepting only such acts as create 
funds for the public credit, which shall never be repealed till then- 
end is effected, or other funds equally effectual are substituted in 
their place; but Congress shall not be obliged to repeal any of 
these acts so petitioned against till they have time to lay the reason 
of such acts before such petitioning States and to receive their an- 
swer; because such petitions may arise from sudden heats, popu- 
lar prejudices, or the publication of matters false in fact, and may 
require time and means of cool reflection and the fullest informa- 
tion before the final decision is made. But if after all more than 
half of the States persist in their demand of a repeal, it shall take 
place. 

The reason is the uneasiness of a majority of States affords a 
strong presumption that the act is wrong, for uneasiness arises 
much more frequently from wrong than right. But if the act was 
good and right it would still be better to repeal and lose it than to 
force the execution of it against the opinion of a major part of the 
States; and lastly, if every act of Congress is subject to this repeal, 
Congress itself will have stronger inducement not only to examine 
well the several acts under their consideration, but also to com- 
municate the reasons of them to the States than they would have if 
their simple vote gave the final stamp of irrevocable authority to 
their acts. 

Further, I propose that if the execution of any act or order of 
the supreme authority shall be opposed by force in any of the 



Authorship of the Constitution of the United States. 71 

States (which, God forbid) it shall be lawful for Congress to send 
into such State a sufficient force to suppress it. 

On the whole, I take it that the very existence and use of our 
Union essentially depends on the full energy and final effect of the 
laws made to support it, and therefore I sacrifice all other consid- 
erations to this energy and effect, and if our Union is not worth 
this purchase we must give it up — the nature of the thing does not 
admit of any other alternative. 

I do contend that our Union is worth this purchase. With it 
every individual rests secure under its protection against foreign or 
domestic insult and oppression ; without it we can have no security 
against the oppression, insult, and invasion of foreign powers; for 
no single State is of importance enough to be an object of treaty 
with them, nor if it was, could it bear the expense of such treaties 
or support any character or respect in a dissevered State, but must I 
lose all respectability among the nations abroad. 

We have a very extensive trade which cannot be carried on with 
security and advantage without treaties of commerce and alliance 
with foreign nations. 

We have an extensive western territory which cannot otherwise 
be defended against the invasion of foreign nations bordering on 
our frontiers, who will cover it with their own inhabitants, and we 
shall lose it forever and our extent of empire be thereby restrained; 
and what is worse, their numerous posterity will in future time 
drive ours into the sea, as the Goths and Vandals formerly con- 
quered the Romans in like circumstances, unless we have the force 
of the Union to repel such invasions. We have, without the 
Union, no security against the inroads and wars of one State upon 
another, by which our wealth and strength as well as our ease and 
comfort will be devoured by enemies growing out of our own 
bowels. 

I conclude then that our Union is not only one of the most essen- 
tial consequence to the well-being of the States in general, but to 
that of every individual citizen of them, and, of course, ought to 
be supported and made as useful and safe as possible by a Consti- 
tution which admits that full energy and final effect of government 
which alone can secure its great ends and uses. 



72 Authorship of the Constitution of the United States. 

In a dissertation of this sort I would not wish to descend to 
minutiae, yet there are some small matters which have important 
consequences and therefore ought to be noticed. It is necessary 
that Congress should have all usual and necessary powers of self- 
preservation and order, e. g., to imprison for contempt, insult or 
interruption, etc., and to expel their own members for due causes, 
among which I would rank that of non-attendance on the house, or 
partial attendance without such excuse as shall satisfy the house. 

Where there is such vast authority and trust devolved on Con- 
gress and the grand and most important interests of the Empire 
rest on their decisions, it appears to me highly unreasonable that 
we should suffer their august consultations to be suspended, or 
their dignity, authority and influence lessened by the idleness, neg- 
lect and non-attendance of its members; for we know that the acts 
of a thin house do not usually carry with them the same degree of 
weight and respect as those of a full house. 

Besides, I think when a man is deputed a delegate in Congress 
and has undertaken the business, the whole Empire becomes, of 
course, possessed of a right to his best and constant services, which 
if any member refuses or neglects, the Empire is injured and ought 
to resent the injury, at least so far as to expel and send him home, 
so that his place may be better supplied. 

I have one argument in favor of my whole plan, viz.: it is so 
formed that no men of dull intellects or small knowledge, or of 
habits too idle for constant attendance, or close and steady atten- 
tion, can do the business with any tolerable degree of respecta- 
bility, nor can they find either honor, profit or satisfaction in being 
there, and, of course, I could wish that the choice of the electors 
might never fall on such a man, or if it should, that he might have 
sense enough (of pain at least, if not of shame) to decline his 
acceptance. 

For after all that can be done I do not think that a good admin- 
istration depends wholly on a good Constitution and good laws, for 
insufficient or bad men will always make bad work and a bad 
administration, let the Constitution and laws be ever so good. The 
management of able, faithful and upright men alone can cause an 
administration to brighten, and the dignity and wisdom of an 



Authorship of the Constitution of the United States. 73 

Empire to rise into respect; make truth the line and measure of 
public decision; give weight and authority to the government, and 
security and peace to the subject. 

We now hope that we are on the close of a war of mighty effort 
and great distress against the greatest power on earth, whetted into 
the most keen resentment and savage fierceness which can be 
excited by wounded pride, and which usually rises higher between 
brother and brother offended than between strangers in contest. 
Twelve of the Thirteen United States have felt the actual and cruel 
invasions of the enemy, and eleven of our capitals have been under 
their power, first or last, during the dreadful conflict, but a good 
Providence, our own virtue and firmness, and the help of our friends 
have enabled us to rise superior to all the powers of our adversaries 
and make them seek to be at peace with us. 

During the extreme pressures of the war indeed many errors in 
our administration have been committed when we could not have 
experience and time for reflection to make us wise, but these will 
easily be excused, forgiven and forgotten if we can now, while at 
leisure, find virtue, wisdom, and foresight enough to correct them 
and form such establishments as shall secure the great ends of our 
Union and give dignity, force, utility and permanency to our 
Empire. 

It is a pity we should lose the honor and blessings which have 
cost us so dear for want of wisdom and firmness in measures which 
are essential to our preservation. It is now at our option either to 
fall back into our original atoms or form such an union as shall 
command the respect of the world and give honor and security to 
our people. 

This vast subject lies with mighty weight on my mind, and I have 
bestowed on it my utmost attention and here offer the public the 
best thoughts and sentiments I am master of. I have confined 
myself in this dissertation entirely to the nature, reason and truth 
of my subject without once adverting to the reception it might 
meet with from men of different prejudices or interests. To find 
the truth, not to carry a point, has been my object. 

I have not the vanity to imagine that my sentiments may be 
adopted ; I shall have all the reward I wish or expect if my disserta- 



74 Authorship of the Constitution of the United States. 

tion shall throw any light on the great subject, shall excite an emu- 
lation of inquiry and animate some abler genius to form a plan of 
greater perfection, less objectionable and more useful. 
Philadelphia, February 16, 1783. 



Notes Appended by Pelatiah Webster to the Republica- 
tion made at Philadelphia in 1791 

note 1 

Forming a plan of confederation or a system of general gov- 
ernment of the United States engrossed the attention of Congress 
from the Declaration of Independence, July 4, 1776, till the same 
was completed by Congress, July 9, 1778, and recommended to 
the several States for ratification, which finally took place March 
1, 1 78 1, from which time the said confederation was considered 
as the grand constitution of the general government, and the 
whole administration was conformed to it. 

And as it had stood the test of discussion in Congress for two 
years before they completed and adopted it, and in all the States 
for three years more before it was finally ratified, one would have 
thought that it must have been a very finished and perfect plan 
of government. 

But on trial of it in practice it was found to be extremely weak, 
defective, totally inefficient, and altogether inadequate to its great 
ends and purposes, for 

1. It blended the legislative and executive powers together in 
one body. 

2. This body, viz.: Congress, consisted of but one house, with- 
out any check upon their resolutions. 

3. The powers of Congress in very few instances were definitive 
and final ; in the most important articles of government they could 
do no more than recommend to the several States, the consent of 
every one of which was necessary to give legal sanction to any 
act so recommended. 

4. They could assess and levy no taxes. 

5. They could institute and execute no punishments except in 
the military department. 



Authorship of the Constitution of the United States. 75 

6. They had no power of deciding or controlling the contentions 
and disputes of different States with each other. 

7. They could not regulate the general trade; or, 

8. Even make laws to secure either public treaties with foreign 
States, or the persons of public ambassadors, or to punish viola- 
tions or injuries done to either of them. 

9. They could institute no general judiciary powers. 

10. They could regulate no public roads, canals, or inland navi- 
gation, etc., etc., etc. 

And what caps all the rest was that (whilst under such an ineffi- 
cient political constitution the only chance we had of any tolerable 
administration lay wholly in the prudence and wisdom of the men 
who happened to take the lead in our public councils) it was fatally 
provided by the absurd doctrine of rotation that if any member of 
Congress by three years' experience and application had qualified 
himself to manage our public affairs with consistency and fitness, 
that he should be constitutionally and absolutely rendered incap- 
able of serving any longer till by three years' discontinuance he 
had pretty well lost the cue or train of the public counsels and 
forgot the ideas and plans which made his service useful and 
important and, in the mean time, his place should be supplied by 
a fresh man, who had the whole matter to learn, and when he had 
learned it was to give place to another fresh man, and so on to 
the end of the chapter. 

The sensible mind of the United States by long experience of 
the fatal mischief of anarchy, or (which is about the same thing) 
of this ridiculous inefficient form of government, began to appre- 
hend that there was something wrong in our policy which ought 
to be redressed and mended, but nobody undertook to delineate 
the necessary amendments. 

I was then pretty much at leisure, and was fully of opinion 
(though the sentiment at that time would not very well bear) 
that it would be ten times easier to form a new constitution than 
to mend the old one. I therefore sat myself down to sketch out 
the leading principles of that political constitution which I thought 
necessary to the preservation and happiness of the United States 
of America, which are comprised in this Dissertation. 



76 Authorship of the Constitution of the United States. 

I hope the reader will please consider that these are the original 
thoughts of a private individual, dictated by the nature of the 
subject only, long before the important theme became the great 
object of discussion in the most dignified and important assembly 
which ever sat or decided in America. 

NOTE 2 

At the time when this Dissertation was written (Feb. 16, 1783) 
the defects and insufficiency of the Old Federal Constitution were 
universally felt and acknowledged. It was manifest, not only 
that the internal police, justice, security and peace of the States 
could never be preserved under it, but the finances and public 
credit would necessarily become so embarrassed, precarious and 
void of support that no public movement which depended on the 
revenue could be managed with any effectual certainty ; but though 
the public mind was under full conviction of all these mischiefs 
and was contemplating a remedy, yet the public ideas were not 
at all concentrated, much less arranged into any new system or 
form of government which would obviate these evils. Under 
these circumstances I offered this Dissertation to the public. How 
far the principles of it were adopted or rejected in the New Con- 
stitution, which was four years afterwards (Sept. 17, 1787) formed 
by the General Convention and since ratified by all the States, is 
obvious to every one. 

I wish here to remark the great particulars of my plan which 
were rejected by the Convention. 

1. My plan was to keep the legislative and executive depart- 
ments entirely distinct; the one to consist of the two houses of 
Congress, the other to rest entirely in the Grand Council of State. 

2. I proposed to introduce a Chamber of Commerce, to consist 
of merchants who should be consulted by the legislature in all 
matters of trade and revenue, and which should have the conduct- 
ing the revenue committed to them. 

The first of these the Convention qualified ; the second they say 
nothing of, i. e., take no notice of it. 

3. I proposed that the great officers of state should have the 
perusal of all bills before they were enacted into laws, and should 



Authorship of the Constitution of the United States. 77 

be required to give their opinion of them as far as they affected 
the public interest in their several departments, which report of 
them Congress should cause to be read in their respective houses 
and entered on their minutes. This is passed over without 
notice. 

4. I proposed that all public officers appointed by the execu- 
tive authority should be amenable both to them and to the legis- 
lative power, and removable for just cause by either of them. 
This is qualified by the Convention. 

And inasmuch as my sentiments in these respects were either 
qualified or totally neglected by the Convention, I suppose they 
were wrong. However, the whole matter is submitted to the 
politicians of the present age and to our posterity in future. 

In sundry other things the Convention have gone into minutiae, 
e. g., respecting elections of presidents, senators, and representa- 
tives in Congress, etc., which I proposed to leave at large to the 
wisdom and discretion of Congress and of the several States. 

Great reasons may doubtless be assigned for their decision, 
and perhaps some little ones for mine. Time, the great arbiter of 
all human plans may, after a while, give his decision; but neither 
the Convention nor myself will probably live to feel either the 
exultation or mortification of his approbation or disapprobation 
of either of our plans. 

But if any of these questions should in future time become objects 
of discussion, neither the vast dignity of the Convention, nor the 
low, unnoticed state of myself, will be at all considered in the 
debates; the merits of the matter and the interests connected 
with or arising out of it will alone dictate the decision. 



PELATIAH WEBSTER'S DEFENCE OF THE NEW CONSTITUTION, PUB- 
LISHED OCTOBER 12, 1787, IN REPLY TO AN ATTACK MADE UPON 
IT BY SIXTEEN MEMBERS OF THE ASSEMBLY OF PENNSYLVANIA 
IN AN ADDRESS DATED SEPTEMBER 29, 1787. 

REMARKS ON THE ADDRESS OF SIXTEEN MEMBERS OF THE ASSEMBLY OF PENN- 
SYLVANIA TO THEIR CONSTITUENTS, DATED SEPTEMBER 29, 1787. WITH SOME 
STRICTURES ON THEIR OBJECTIONS TO THE CONSTITUTION RECOMMENDED 
BY THE LATE FEDERAL CONVENTION.! (FIRST PUBLISHED IN PHILADELPHIA, 
OCTOBER 12, 1787.) 

I am now to consider the objections of our sixteen members to 
the New Constitution itself, which is the most important part that 
lies on me. 

1 . Their first objection is that the government proposed will be 
too expensive. I answer that if the appointments of offices are 
not more and the compensations or emoluments of office not 
greater than is necessary, the expense will be by no means burden- 
some, and thus must be left to the prudence of Congress, for I 
know of no way to control supreme powers from extravagance in 
this respect. Doubtless many instances may be produced of many 
needless offices being created, and many inferior officers who re- 
ceive far greater emoluments of office than the first president of 
the State. 

2. Their next objection is against a legislature consisting of three 
branches. 2 This is so far from an objection that I consider it as 
an advantage. The most weighty and important affairs of the 
Union must be transacted in Congress; the most essential coun- 

1 The pamphlet was first published by Eleazer Oswald at the Coffee House. It was subsequently repub- 
lished by Webster, in a somewhat abridged form, in his Essays. He then appended this note: "When 
the New Constitution was laid before the Assembly of Pennsylvania, in September , 1787, a resolution passed 
the House (forty-three against nineteen) to call a convention to consider it, etc. Sixteen of the dissentients 
published an address to their constituents, dated September 27, r787, stating their conduct and assigning the 
reasons of it; but as there was very little in all this affair that reflected much honor on the dissenting mem- 
bers or on the State to which they belonged, and nothing that could affect or concern anybody out of that State, 
I have here omitted my remarks on all of it but their objections to the New Constitution itself, which, being of 
general consequence to the States, inasmuch as that Constitution (with a few amendments since adopted) 
is the same which now exists in full establishment through the Union, I therefore here insert, I say, their 
objections and my remarks on them and leave out all the rest as matter of local concern at that time, but like 
to be little interesting to the public in general at this or any future time." It is the revised version that is 
reproduced here. The original text as published by Oswald may be found in the Library of Congress and 
in the Boston Atheneeum. 

s In speaking of "a legislature consisting of three branches" he includes, as he explains a little later, the 
President and his advisers as "a third House." 

79 



8o Authorship of the Constitution of the United States. 

sels must be there decided, which must all go thro' several dis- 
cussions in three different chambers (all equally competent to the 
subject and equally governed by the same motives and interests, 
viz, the good of the great Commonwealth and the approbation of 
the people) before any decision can be made; and when disputes 
are very high, different discussions are necessary, because they 
afford time for all parties to cool and reconsider. 

This appears to me to be a very safe way and a very likely 
method to prevent any sudden and undigested resolutions from 
passing; and, tho' it may delay or even destroy a good bill, will 
hardly admit the passing of a bad one, which is by far the worst 
evil of the two. But if all this cannot stop the course of a bad 
bill, the negative of the President will at least give it further 
embarrassment, will furnish all the new light which a most serious 
discussion in a third House can give, and will make a. new dis- 
cussion necessary in each of the other two, where every member 
will have an opportunity to revise his opinion, to correct his argu- 
ments, and bring his judgment to the greatest maturity possible. 
If all this cannot keep the public decision within the bounds of 
wisdom, fitness, right, and convenience, it will be hard to find any 
efforts of human wisdom that can do it. 

I believe it would be difficult to find a man in the Union who 
would not readily consent to have Congress vested with all the 
vast powers proposed by the New Constitution if he could be sure 
that those powers would be exercised with wisdom, justice, and 
propriety, and not be abused; and I do not see that greater pre- 
cautions and guards against abuses can well be devised or more 
effectual methods used to throw every degree of light on every 
subject of debate, or more powerful motives to a reasonable and 
honest decision can be set before the minds of Congress, than are 
here proposed. 

And if this is the best that can be obtained, it ought in all pru- 
dence to be adopted till better appears, rather than to be rejected 
merely because it is human, not perfect, and may be abused. At 
any rate, I think it very plain that our chance of a right decision 
in a Congress of three branches is much greater than in one single 
chamber; but, however all this may be, I cannot see the least 
tendency in a legislature of three branches to increase the bur- 



Authorship of the Constitution of the United States. 81 

dens or taxes of the people. I think it very evident that any 
proposition of extravagant expense would be checked and embar- 
rassed in such an assembly more than in a single House. 

Farther, the two Houses being by their election taken from the 
body of the States, and being themselves principal inhabitants, 
will naturally have the interest of the Commonwealth sincerely at 
heart; their principle must be the same, their differences must (if 
any) in the mode of pursuing it, or arise from local attachments ; 
I say the great interest in their country and the esteem, confidence, 
and approbation of their fellow citizens must be strong governing 
principles in both Houses, as well as in the President himself. 1 

3. Another objection is that the Constitution proposed will 
annihilate the State governments or reduce them to mere corporations. 
I take it that this objection is thrown out (merely invidice causa) 
without the least ground for it; for I do not find one article of 
the Constitution proposed which vests Congress or any of their 
officers or courts with a power to interfere in the least in the internal 
police or government of any one State when the interests of some 
other State or strangers or the Union in general are not con- 
cerned; and in such cases it is absolutely and manifestly neces- 
sary that Congress should have a controlling power, otherwise 
there would be no end of controversies and injuries between differ- 
ent States, nor any safety for individuals, nor any possibility of 
supporting the Union with any tolerable degree of honour, strength, 
or security. 

4. Another objection is against the power of taxation vested in 
Congress. But I answer this is absolutely necessary and unavoid- 
able from the necessity of the case; I know it is a tender point, a 
vast power, and a terrible engine of oppression and tyranny when 
wantonly, injudiciously, or wickedly used, but must be admitted; 
for it is impossible to support the Union, or indeed any govern- 
ment, without expense — the Congress are the proper judges of that 
expense, the amount of it, and the best means of supplying it; 
the safety of the States absolutely requires that this power be 
lodged somewhere, and no other body can have the least preten- 

1 " Vide a Dissertation on the Political Union and Constitution of the Thirteen United States, pub- 
lished by a Citizen of Philadelphia, February 16, 1783, where the subject is taken up at large." Taken 
from the text of the original pamphlet. 



82 Authorship of the Constitution cf the United States. 

sions to it; and no part of the resources of the States can, with 
any safety, be exempt, when the exigencies of the Union or Govern- 
ment require their utmost exertion. 

The stronger we make our Government the greater protection it can 
afford us and the greater will our safety be under it. It is easy 
enough here to harangue on the arts of a court to create occasions 
for money, or the unbounded extravagance with which they can 
spend it; but all this notwithstanding, we must take our courts 
as we do our wives, for better or for worse. We hope the best of 
an American Congress, but if they disappoint us, we can not help 
it; it is in vain to try to form any plan of avoiding the frailties of 
human nature. Would any man choose a lame horse lest a sound 
one should run away with him, or will any man prefer a small tent to 
live in, before a large house, which may fall down and crush him 
in its ruins ? No man has any right to find fault with this article 
till he can substitute a better in its room. 

The sixteen members attempt to aggravate the horrors of this 
devouring power by suggesting the rigid severity with which 
Congress, with their faithful soldiers, will exact and collect the 
taxes. This picture, stripped of its black drapery, amounts to 
just this, viz, that whatever taxes are laid will be collected, 
without exception, from every person charged with them, which 
must look disagreeable, I suppose, to people who, by one shift 
or another, have avoided paying taxes all their lives. 

But it is a plain truth, and will be obvious to anybody who 
duly considers it, that nothing can be more ruinous to a state or 
oppressive to individuals than a partial and dilatory collection of 
taxes, especially where the tax is an impost or excise, because 
the man who avoids the tax can undersell, and consequently ruin, 
him who pays it — i. e., smuggling ruins the fair trader — and a 
remedy of this mischief, I can not suppose, will be deemed by 
our people in general such a very awful judgment, as the sixteen 
members would make us believe their constituents will consider 
it to be. 

5. They object that the liberty of the press is not asserted in 
the Constitution. I answer neither are any of the ten command- 
ments, but I do not think that it follows that it was the design 
of the convention to sacrifice either the one or the other to con- 
tempt or to leave them void of protection and effectual support. 



Authorship of the Constitution of the United States. 83 

6. It is objected farther that the Constitution contains no 
declaration of rights. I answer this is not true; the Constitution 
contains a declaration of many rights, and very important ones, 
e. g., that people shall be obliged to fulfil their contracts, and not 
avoid them by tenders of anything less than the value stipulated; 
that no ex post facto laws shall be made, etc., but it was no part 
of the business of their appointment to make a code of laws; it 
was sufficient to fix the Constitution right, and that would pave 
the way for the most effectual security of the rights of the subject. 

7. They further object that no provision is made against a 
standing army in time of peace. I answer that a standing army — 
i. e. , regular troops — are often necessary in time of peace, to pre- 
vent a war, to guard against sudden invasions, for garrison duty, 
to quell mobs and riots, as guards to Congress and perhaps other 
courts, etc., as military schools to keep up the knowledge and 
habits of military discipline and exercise, etc., and as the power 
of raising troops is rightfully and without objection vested in 
Congress, so they are the proper est and best judges of the number 
requisite, and the occasion, time, and manner of employing them; 
if they are not wanted on military duty they may be employed 
in making public roads, fortifications, or any other public works; 
they need not be an useless burden to the States ; and for all this 
the prudence of Congress must be trusted, and nobody can have 
a right to object to this till they can point out some way of doing 
better. 

8. Another objection is that the new Constitution abolishes 
trial by jury in civil causes. I answer I do not see one word in 
the Constitution which, by any candid construction, can support 
even the remotest suspicion that this ever entered into the heart 
of one member of the convention; I therefore set down the sug- 
gestion for sheer malice, and so dismiss it. 

9. Another objection is that the Federal judiciary is so con- 
structed as to destroy the judiciaries of the several States, and that 
the appellate jurisdiction, with respect to law and fact, is unneces- 
sary. I answer both the original and appellate jurisdiction of 
the Federal judiciary are manifestly necessary, where the cause of 
action affects the citizens of different States, the general interest 
of the Union, or strangers (and to cases of these descriptions only 



84 Authorship of the Constitution of the United States. 

does the jurisdiction of the Federal judiciary extend) ; I say these 
jurisdictions of the Federal judiciary are manifestly necessary for 
the reasons just now given under the third objection. 

I do not see how they can avoid trying any issue joined before 
them, whether the thing to be decided is law or fact, but I think 
no doubt can be made that if the issue joined is fact it must be 
tried by jury. 

10. They object that the election of Delegates for the House of 
Representatives is for two years and of Senators for six years. I 
think this a manifest advantage rather than an objection. Very 
great inconveniences must necessarily arise from a too frequent 
change of the members of large legislative or executive bodies, 
while the revision of every past transaction must be taken up, 
explained, and discussed anew for the information of the new 
Members where the settled rules of the House are little under- 
stood by them, etc., all which ought to be avoided if it can be 
with safety. 

Further, it is plain that any man who serves in such bodies is 
better qualified the second year than he could be the first, because 
experience adds qualifications for every business, etc. The only 
objection is that long continuance affords danger of corruption, 
but for this the Constitution provides a remedy by impeachment 
and expulsion, which will be sufficient restraint unless a majority 
of the House and Senate should become corrupt, which is not 
easily presumable. In fine, there is a certain mean between too long 
and too short continuances of Members in Congress, and I can not 
see but it is judiciously fixed by the convention. 

Upon the whole matter I think the sixteen Members have 
employed an address writer of great dexterity, who has given us a 
strong sample of ingenious malignity and ill nature — a masterpiece 
of high colouring in the scarecrow way. In his account of the conduct 
of the sixteen Members, by an unexpected openness and candour, 
he avows facts which he certainly can not expect to justify or even 
hope that their constituents will patronize or even approve, but 
he seems to lose all candour when he deals in sentiments; when he 
comes to point out the nature and operation of the New Constitu- 
tion he appears to mistake the spirit and true principles of it very 



Authorship of the Constitution of the United States. 85 

much, or, which is worse, takes pleasure in showing it in the worst 
light he can paint it in. 

I, however, agree with him in this : " That this is the time for con- 
sideration and minute examination," and I think the great sub- 
ject, when viewed seriously without passion or prejudice, will bear 
and brighten under the severest examination of the rational enquirer. 
If the provisions of the law or Constitution do not exceed the 
occasions, if the remedies are not extended beyond the mischiefs, 
the Government can not be justly charged with severity. On the 
other hand, if the provisions are not adequate to the occasions and 
the remidies not equal to the mischiefs, the Government must be 
too lax and not sufficiently operative to give the necessary security 
to the subject. To form a right judgment, we must compare these 
two things well together and not suffer our minds to dwell on one 
of them alone without considering it in connection with the other. 
By this means we shall easily see that the one makes the other 
necessary. 

Were we to view only the gaols and dungeons, the gallows and 
pillories, the chains and wheelbarrows of any State we might be 
induced to think the Government severe; but when we turn our 
attention to the murders and parricides, the robberies and bur- 
glaries, the piracies and thefts, which merit these punishments, our 
idea of cruelty vanishes at once and we admire the justice and 
perhaps clemency of that Government which before shocked us as 
too severe. So when we fix our attention only on the superlative 
authority and energetic force vested in Congress and our Federal 
executive powers by the New Constitution we may at first sight 
be induced to think that we yield more of the sovereignty of the 
States and of personal liberty than is requisite to maintain the Fed- 
eral Government; but when, on the other hand, we consider with 
full survey the vast supports which the Union requires and the im- 
mense consequence of that Union to us all, we shall probably soon 
be convinced that the powers aforesaid, extensive as they are, are 
not greater than is necessary for our benefit ; for 

1 . No laws of any State which do not carry in them a force which 
extends to their effectual and final execution can afford a certain and 
sufficient security to the subject; for 



86 Authorship of the Constitution of the United States. 

2. Laws of any kind which jail of execution are worse than none, 
because they weaken the Government, expose it to contempt, 
destroy the confidence of all men, both subjects and strangers, in 
it, and disappoint all men who have confided in it. 

In fine, our Union can never be supported without definite and 
effectual laws which are coextensive with their occasions and which 
are supported by authorities and powers which can give them 
execution with energy. If admitting such powers into our Constitu- 
tion can be called a sacrifice, it is a sacrifice to safety, and the only 
question is whether our Union or Federal Government is worth 
this sacrifice. 

Our Union, I say, under the protection of which every individual 
rests secure against foreign and domestic insult and oppression; 
but without it we can have no security against invasions, insults, 
and oppressions of foreign powers or against the inroads and wars 
of one State on another, or even against insurrections and rebellions 
arising within particular States, by which our wealth and strength, 
as well as ease, comfort, and safety, will be devoured by enemies 
growing out of our own bowels. 

It is our Union alone which can give us respectability abroad in 
the eyes of foreign nations and secure to us all the advantages, 
both of trade and safety, which can be derived from treaties with 
them. 

The thirteen States, all united and well cemented together, are 
a strong, rich, and formidable body not of stationary, matured power, 
but increasing every day in riches, strength, and numbers. 

Thus circumstanced, we can demand the attention and respect 
of all foreign nations, but they will give us both in exact proportion 
to the solidity of our union; for if they observe our union to be 
lax, from insufficient principles of cement in our Constitution, or 
mutinies and insurrections of our own people (which are the direct 
consequence of an insufficient cement of union) ; I say, when for- 
eign nations see either of these, they will immediately abate of their 
attention and respect to us, and confidence in us. 

And as it appears to me, that the new Constitution does not vest 
Congress with more or greater powers than are necessary to sup- 
port this important union, I wish it may be admitted in the most 
cordial and unanimous manner by all the States. 



Authorship of the Constitution of the United States. 87 

It is a human composition, and may have errors which future 
experience will enable us to discover and correct; but I think it 
is very plain, if it has faults, that the address writer of the sixteen 
members has not been able to find them; for he has all along 
either hunted down phantoms of error, that have no real existence, 
or, which is worse, tarnished real excellencies into blemishes. 

I have dwelt the longer on these remarks of this writer, because 
I observe that all the scribblers in our papers against the new 
Constitution have taken their cue principally from him; all their 
lucubrations contain little more than his ideas dressed out in a 
great variety of forms ; one of which colours so high as to make the 
new Constitution strongly resemble the Turkish Government {vide 
Gazetteer, of the 10th instant) which, I think, comes about as near 
the truth as any of the rest, and brings to my mind a sentiment 
in polemical divinity, which I have somewhere read, that there 
were once great disputes and different opinions among drones 
about the mark which was set on Cain, when one of them very 
gravely thought it was born fully grown out on his forehead. It is 
probable he could not think of a worse mark than that. 

On the whole matter, there is no aid to extravagancies of the 
human fancy which are commonly dictated by poignant feelings, 
disordered passions, or affecting interests; but I could wish my 
fellow citizens, in the matter of vast importance before us, would 
divest themselves of bias, passion, and little personal or local inter- 
ests, and consider the great subject with that dignity of reason, 
and independence of sentiment, which national interests ever 
require. 

I have here given my sentiments with the most unbiased free- 
dom, and hope they will be received with the most candid atten- 
tion and unbiased discussion by the State in which I live, and in 
which I expect to leave my children. 

I will conclude with one observation, which I take to be very 
capital, viz, that the distresses and oppressions, both of nations 
and individuals, often arise from the powers of government being 
too limited in their principle, too indeterminate in their definition, 
or too lax in their execution, and, of course, the safety of the citizens 
depends much on full and definite powers of government, and an 
effectual execution of them. 



